THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


MINING  EIGHTS 

ON  THE 

PUBLIC  DOMAIN 


15TH  EDITION 
ENLARGED  AND  REVISED  TO  DATE 


LODE  AND  PLACER  CLAIMS,  TUNNELS,  MILL 

SITES  AND  WATER  RIGHTS,  STATUTES  AND 

DECISIONS,  FORMS  AND  PROCEDDRE 

ON  PATENT  APPLICATIONS 


FOR  PROSPECTORS,  ATTORNEYS,  Su'-./EYORS 
AND  MINING  COMPANIES 


BY  R.  S.  MORRISON  AND  EMILIO  D.  DE  SOTO 

IM  OF    THE   COLORADO   BAR 


BENDER-MOSS  (<o. 

SAX  FKAXCISCO,  <;AI,. 
1017 


COPYRIGHT,  1917, 

BY 
B.  S.  MORRISON  AND  EMILIO  D.  DE  80TO 

OHT  ^ 
MW/A 

19  n 


PREFACE 


This  work  has  passed  through  fourteen  editions  without  a 
Preface,  and  if  our  own  preference  were  followed  we  would 
allow  the  present  edition  to  speak  for  itself  without  the  for- 
mality of  an  introduction. 

The  First  Edition  appeared  in  1874,  shortly  after  the 
passage  of  the  now  so  well  known  congressional  act  of  1872, 
still  substantially  in  force.  Its  endeavor  was  to  counsel  how 
to  conform  to  the  terms  of  that  act  which  introduced  a  mul- 
titude of  questions  now  advanced  to  the  form  of  reported 
cases.  To  follow  the  progress  of  such  act  and  its  amendments 
and  the  judicial  construction  of  the  same  has  been  the  object 
of  each  successive  edition. 

This  act  has  now  been  so  thoroughly  interpreted  by  hun- 
dreds of  adjudications  that,  upon  most  points,  the  mining 
attorney,  being  advised  of  the  facts,  can  so  counsel  his  clients 
as  to  avoid  the  necessity  of  a  law  suit,  to  compromise  where 
the  facts  are  not  clear,  or  to  attack  or  defend  the  disputed 
title  with  reasonable  expectation  of  success. 

It  is  to  check,  not  to  encourage,  litigation  that  this  book 
has  been  written,  and  especially  its  office  has  been  and  still 
is  to  advise  the  prospector  at  the  outstart  how  to  protect 
his  title  by  conforming  to  our  suggestions. 

We  only  add  that,  among  the  authors  in  the  same  field,  little 
professional  jealousy  seems  to  exist,  and  we  cordially  thank 
Mr.  Curtis  H.  Lindley,  author  of  a  most  thorough  work  on 
the  subject ;  Mr.  George  P.  Costigan,  Jr.,  and  Mr.  Horace  F. 
Clark  of  Washington,  D.  C.,  for  courteous  suggestions  along 
the  progress  of  this  last  revision. 

MORRISON  &  DE  SOTO. 
DENVER,  COLO.,  January  12,  1917. 


749190 


CONTENTS 


PAGE 

ABANDONMENT  '. 108 

ADVERSE  CLAIM 599 

ALASKA .'.634 

ALIENS 387 

ANGLES  AND  VARIATIONS 229 

ANNUAL  LABOR   114,  140 

APEX .203 

APPLICATION  FOR  PATENT 540 

ASSAYS 482 

BUREAU  OF  MINES 481 

CIRCULAR  TO  APPLICANTS 535 

COAL  LANDS 655 

CONVEYANCE    331 

CORPORATIONS    393 

CROSS  LODES  185 

DEPARTURE  FROM  SIDE  LINES 192 

DIP 223 

DISCOVERY  AND  LOCATION 21,  22 

DISTRICT  RULES 1 

DITCHES  AND  WATER 233 

DRAINAGE 23 1 

DUMP    • 249 

EASEMENTS    243 

EJECTMENT   436 

EXAMINATION  OF  TITLE 382 

FLOODING   231 

FORCIBLE  ENTRY 446 

FOREIGN  CORPORATIONS  413 

FOREST  RESERVES 419 

FORFEITURE 142 

FRAUD 355 

GLOSSARY 693 

HOMESTEAD  ACT 692 

INDIAN  RESERVATION   418 

INJUNCTION 459 

INSPECTION  AND  SURVEY 473 

INTERFERENCE  OF  CLAIMS 182 

KNOWN  LODE  IN  PLACER 280 

LAND  OFFICE  REGULATIONS 485 

LEASE 357 

(v) 


vi  CONTENTS. 

PAGE 

LENGTH  OF  LODES 12,     15 

LICENSE   374 

LIENS,  JUDGMENTS  AND  MORTGAGES 323 

LOCATION  OF  LODES 21,     22 

LODES,  VEINS  AND  LEDGES 196 

MEASURE  OF  DAMAGES 440 

MEXICAN  GRANT 391 

MEXICAN  MINING  LAW «. 689 

MILL  SITES   ' 294 

MINERAL  LAND  252 

MINERS  '  LIEN 32G 

MINERS  '  RIGHTS,  CONGRESSIONAL  RECOGNITION 6 

MINING  DISTRICTS  1 

NATIONAL  FORESTS   . . . 419 

NEGLIGENCE  452 

NUISANCE  293 

OIL  AND  GAS 665 

OIL  CLAIMS  ON  PUBLIC  DOMAIN 686 

ORE  BUYERS 430 

ORE  CONTRACTS 427 

PATENT 168 

PENAL  PROVISIONS  432 

PHILIPPINE  ISLANDS 638 

PLACERS  257 

PLACER  CONTAINING  LODE 280 

POSSESSORY  TITLE  ' 7 

PROSPECTING  CONTRACT 376 

PROTEST   629 

RECORD   84 

RELOCATION 149,  160 

REPLEVIN 459 

RIGHT  OF  WAY 243 

SALES  AND  OPTIONS 343 

SCHOOL  CLAIMS 11 

SCHOOL  OF  MINES 484 

SEVERANCE  300 

SIDE  VEINS 190 

SOLDIERS  '  CLAIMS 11 

SPURS   228 

STATE  LANDS 310 

STATUTES,  U.  S_,  IN  FORCE 640 

STATUTES,  U.  S.,  REPEALED 63S 

STATUTE  OF  LIMITATIONS 477 

STATUTORY  REQUIREMENTS,  LODES •. 68 


CONTENTS.  rii 

PAGE 

STATUTORY  REQUIREMENTS,  PLACERS 272 

SURVEYOR  GENERAL,  's  CIRCULAR 535 

SURVEYOR  GENERAL'S  FEES 538 

TAILINGS 287 

TAXATION 321 

TENANTS  IN  COMMON 415 

TIDE  LANDS 633 

TIMBER  ACT 663 

TIMBER  AND  STONE  ACT -. 658 

TRESPASS   446 

TUNNEL  SITES 311 

U.  S.  LICENSE 6 

U.  S.  PATENT 168 

VEINS  UNITING  ON  DIP 188 

VEIN  WIDER  THAN  PATENT 195 

WALLS 226 

WIDTH  OF  LODES 17 

WITHDRAWAL  ACTS   422 

WORKING  CONTRACTS . .  381 


MINING  EIGHTS 


DISTRICT  RULES. 

Mining  districts  and  their  rules  had  their  origin  in  the  min- 
ing camps  of  California  in  1849,  before  any  territorial  form 
of  government  had  been  established,  and  their  system  became 
the  precedent  for  like  organizations  wherever  discoveries  of 
mineral  values  in  other  sections  brought  together  an  influx  of 
prospectors. 

Practically  all  the  Pacific  Slope  and  the  land  east  of  the 
mountains  to  the  Missouri  River  was  then  public  domain.  The 
vast  ore  bodies  of  the  Comstock,  the  wealth  of  Alder  Gulch,  the 
placers  of  Pikes  Peak,  and  of  countless  intermediate  mineral 
localities  were  all  appropriated  and  their  values  extracted 
under  the  protection  of  this  form  of  local  self-government  for 
many  years,  with  no  paternal  interference  by  the  National 
Legislature. 

Each  local  camp  called  itself  a  Mining  District  as  denned  by 
the  action  of  a  mass  meeting  of  the  miners.  Some  of  them 
were  less  than  a  mile  square,  others  quite  extensive,  and  they 
have  become  permanent  geographical  divisions  for  purpose  of 
description  in  the  conveyance  of  real  estate  of  all  kinds  in  the 
mining  states. 

After  defining  the  name  and  local  extent  of  the  district 
these  meetings  usually  designated  certain  officials  to  be  elected 
from  time  to  time,  and  then  proceeded  to  adopt  rules  regulat- 
ing the  size  of  claims  and  the  prerequisites  of  location  and 
providing  for  annual  labor  or  periodical  representation  in 
some  form. 

Before  the  territorial  organizations  were  complete,  and 
while  the  diggings  were  remote  from  organized  society,  they 
often  took  a  much  wider  scope,  and  provisions  were  made  for 
executive  officers,  for  miners'  courts,  and  covering  all  sorts  of 
subjects.  But  these  incidents  have  long  since  ceased, 
(i) 


2  DISTRICT  BULKS. 

Where  the  districts  have  been  abandoned,  provision  ha.? 
generally  been  made  to  preserve  their  records  in  the  County 
Recorder's  office. 

With  almost  no  interference  by  State  or  Territorial  Acts 
they  were  the  mining  laws  of  the  land  until  the  Act  of  Con- 
gress of  July  26,  1866.  This  but  slightly  limited  their  au- 
thority, but  the  Act  of  May  10,  1872,  covered  so  many  essen- 
tial incidents,  and  has  been  so  supplemented  by  State  legisla- 
tion, that  they  have  been  gradually  abandoned,  and  survive 
now  only  as  a  name  of  description. 

Even  in  Alaska  the  district  organizations  are  but  little  pre- 
served. Where  not  extinct  their  existence  is  practically  con- 
fined to  the  keeping  of  district  records  for  the  registry  ot 
locations,  with  regulations  denning  the  details  of  location. 
Undoubtedly  where  there  is  no  State  or  Territorial  Statute  a 
district  can  yet  be  organized  and  the  incidents  of  location 
fixed  by  its  rules,  but  any  attempt  to  revive  old  districts  or 
enact  new  district  rules  in  any  State  or  Territory  which  has 
any  pretense  of  a  mining  code  would  only  tend  to  confusion. 

These  rules  were  not  altogether  arbitrary  or  experimental. 
In  many  respects  they  followed  precedents  already  long  estab- 
lished in  Spain  and  Mexico.  The  requirements  of  discovery 
and  discovery  shaft,  of  sinking  and  record,  periodical  labor, 
forfeiture  for  non-representation,  and  many  others,  are  dupli- 
cates, more  or  less  close,  of  like  provisions  -of  the  Royal  Code 
of  1783,  but  enacted  by  these  local  conventions  of  practical 
miners  in  entire  ignorance  of  the  existence  of  such  code. — 
Rockwell's  Sp.  &  Mex.  Laws,  25. 

For  instances  of  the  form  and  contents  of  District  Rules  see 
llth  edition,  p.  5. 

The  rules  under  which  the  Comstock  lode  was  located  are 
printed  in  Kinney  v.  Cons.  Va.  Co.,  10  M.  R.  467,  4  Saw.  382, 
Fed.  Gas.  No.  7827. 


DISTRICT  EULES.  3 

Unorganized  Districts. 

A  mining  title  may  be  proved  without  either  district  organi- 
zation or  proof  of  district  rules. — Golden  Fleece  Co.  v.  Cable 
Co.,  1  M.  E.  120,  12  Nev.  312. 

Where  land  office  or  other  forms  contain  a  blank  for  the 
name  of  the  mining  district,  and  no  district  has  ever  been 
formed,  it  is  usual  to  fill  such  blank  with  the  word  "Unor- 
ganized." And  there  is  no  doubt  that  a  mining  district  may 
exist  to  the  extent  of  giving  a  name  to  a  locality  and  lim- 
ited to  that  extent,  and  such  name,  when  adopted  by  com- 
mon consent,  is  as  valid  as  if  adopted  at  a  district  meeting. 

The  term  "Mining  District"  has  a  well  known  meaning, 
while  the  term  "mineral  district"  is  only  a  vague  and  indefi- 
nite generalization. — U.  8.  v.  Smith,  11  F.  487.  The  same  as 
to  "locality."  Foster  v.  Hart  Co.,  52  Colo.  429,  122  P.  54. 

New  Districts  in  Alaska. 

The  Alaska  Act  recognizes  old  district  organizations,  pro- 
vides for  new  ones  and  contemplates  the  passage  of  district 
rules.  Upon  the  organization  of  a  district  the  minutes  of  first 
meeting  should  show  that  it  was  called  by  public  notice  and 
attended  by  a  majority  of  the  miners  either  personally  or  by 
representation;  should  define  boundaries;  elect  permanent 
Chairman  and  Recorder;  and  after  providing  for  keeping 
permanent  and  accessible  records  should  adopt  but  few  if  any 
rules,  the  1915  Territorial  Act  sufficiently  covering  all  items 
of  location  and  record. 

Judicial  Decisions  as  to  District  Rules. 

Where  in  ejectment  for  a  mining  claim  the  plaintiff  has 
described  the  same  as  located  under  district  rules,  he  may 
recover  without  proof  of  the  existence  of  such  rules  by  evi- 
dence of  his  prior  possession  and  the  entry  of  defendant: 
but  if  his  prima  facie  case  on  possession  is  negatived  by  any 
title  proved  by  defendant  he  must  then  show  the  existence 


4  DISTRICT  KULES. 

of  the  district  rules  and  his  compliance  therewith  before  he 
can  introduce  his  location  or  record  made  under  such  rules. — 
Scars  v.  Taylor,  5  M.  R.  318,  4  Colo.  38. 

Courts  will  not  inquire  into  the  regularity  of  the  mode  by 
which  district  rules  have  been  enacted,  except  upon  allega- 
tion of  fraud,  or  other  like  cause. — Gore  v.  McBrayer,  1  M.  R. 
645,  18  Cal.  583. 

Where  the  evidence  renders  it  doubtful  whether  the  writ- 
ten laws  of  the  district  are  in  force,  both  the  written  laws 
and  parol  proof  of  the  mining  customs  may  be  offered  in  evi- 
dence.—Cowman  v.  Clements,  5  M.  .R.  247,  23  Cal.  245. 

District  Records. 

A  district  record  kept  in  a  pocket  diary  is  no  record. — 
Fuller  v.  Harris,  29  F.  814.  A  district  recorder  can  not 
appoint  a  deputy. — Van  Buren  v.  McKinley,  8  Idaho  93,  66 
P.  936. 

Once  proved  to  exist  are  presumed  to  continue. — Eiborado 
v.  Quang  Pang  M.  Co.,  2  Idaho  144,  6  P.  125. 

The  land  office,  in  patent  applications,  has  the  power  to 
decide  what  rules  are  in  force. — Parleys  Park  Co.  v.  Kerr, 
130  U.  S.  256,  17  M.  R.  201,  32  L.  Ed.  906,  9  Sup.  Ct.  Rep. 
511. 

A  mining  regulation  can  not  restrict  the  number  of  claims 
which  a  party  may  hold  by  purchase. — Prosser  v.  Parks,  4 
M.  R.  452,  18  Cal.  47. 

A  district  rule  can  not  limit  the  size  of  a  claim  duly  located 
before  such  rule  was  adopted. — Table  Mt.  Co.  v.  Stranahan, 
9  M.  R.  465,  21  Cal.  548. 

A  right  to  hold  a  claim  may  be  forfeited  by  failure  to  com- 
ply with  the  district  rules. — St.  John  v.  Kidd,  4  M.  R.  454,  26 
Cal.  264.  But  not  unless  the  rule  itself  so  expressly  provides. 
— Bell  v.  Bed  Rock  Co.,  1  M.  R.  45,  36  Cal.  214;  Emerson  v. 
McWhirter,  133  Cal.  510,  65  P.  1036.  See  Yosemite  Co.  v. 
Emerson,  208  U.  S.  25,  52  L.  Ed.  374,  28  Sup.  Ct.  Rep.  196. 

A  valid  district  rule  may  exist  and  be  proved,  although  not 


DISTRICT  RULES.  5 

found  among  other  written  rules  of  the  district. — Harvey  v. 
Kyan,  4  M.  R.  490,  42  Cal.  626. 

A  custom,  reasonable  in  itself,  and  generally  observed,  will 
prevail  against  a  written  mining  regulation  which  has  fallen 
into  disuse. — Id.  The  existence  of  a  district  mining  law  is  a 
question  of  fact  for  the  jury. — Id. 

Effect  of  Mining  Codes. 

Alaska  and  all  the  Mountain  and  Pacific  States  except  Utah 
have  adopted  more  or  less  complete  mining  codes.  In  Utah 
a  little  is  left  to  the  control  of  the  district  organizations,  but 
the  inclination  in  all  is  toward  statutory  regulations  and 
on  whatever  point  the  statute  is  made  to  cover  the  authority 
of  the  district  rules  ceases,  except  as  to  rights  already  vested. 
The  tendency  is  thus  to  their  ultimate  extinction.  See  STATU- 
TORY REQUIREMENTS  and  RECORD. 

The  1909  Mining  Act  of  California  is  in  some  respects  the 
best  legislation  on  the  subject  because  of  its  simplicity,  it 
requiring  none  of  the  useless  and  burdensome  details  such  as 
are  imposed  by  the  Montana  and  Nevada  Acts. 

Its  Sec.  1426  R. : 

The  provisions  of  this  Act  shall  not  in  any  manner  be  construed  as 
affecting  or  abolishing  any  Mining  District  or  the  rules  and  regulations 
thereof, 

would  seem  to  allow  the  district  rules  to  control  the  statute, 
but  for  the  fact  that  the  district  rules  are  generally  either 
obsolete  or  run  concurrent  with  the  Act. 


6  U.  S.  LICENSE. 

CONGRESSIONAL  RECOGNITION  OF  MINERS'  RIGHTS. 
License  to  Appropriate  the  Public  Domain. 

R.  S.  Sec.  910. — No  possessory  action  between  persons,  in  any  court  of 
the  United  States,  for  the  recovery  of  any  mining  title,  or  for  damages 
to  any  such  title,  shall  be  affected  by  the  fact  that  the  paramount  title 
to  the  land  in  which  such  mines  lie  is  in  the  United  States;. but  each 
case  shall  be  adjudged  by  the  law  of  possession. — Sec.  9,  A.  C.  Feb.  %1, 
1865. 

License  Under  Congressional  Act  of  1866. 

Sec.  1. — The  mineral  lands  of  the  public  domain,  both  surveyed  and 
unsurveyed,  are  hereby  declared  to  be  free  and  open  to  exploration  and 
occupation  by  all  citizens  of  the  United  States,  and  those  who  have 
declared  their  intention  to  become  citizens,  subject  to  such  regulations  as 
may  be  prescribed  by  law,  and  subject  also  to  the  local  customs  or  rules 
of  miners  in  the  several  mining  districts,  so  far  as  the  same  may  not 
be  in  conflict  with  the  laws  of  the  United  States. — July  86,  1866. 
Eepealed  May  10,  1872. 

License  Under  Present  Congressional  Law. 

E.  S.  Sec.  2319. — All  valuable  mineral  deposits  in  lands  belonging  to 
the  United  States,  both  surveyed  and  unsurveyed,  are  hereby  declared 
to  be  free  and  open  to  exploration  and  purchase,  and  the  lands  in  which 
they  are  found  to  occupation  and  purchase,  by  citizens  of  the  United 
States  and  those  who  have  declared  their  intention  to  become  such, 
under  regulations  prescribed  by  law,  and  according  to  the  local  customs 
or  rules  of  miners  in  the  several  mining  districts,  so  far  as  the  same 
are  applicable  and  not  inconsistent  with  the  laws  of  the  United  States. — 
Sec.  1,  A.  C.  May  10,  1872. 

Section  910  contains  the  first  Congressional  recognition  of 
the  fact  that  the  mineral  lands  of  the  United  States  were  being 
appropriated  by  its  citizens. 

From  the  time,  however,  of  the  discovery  of  gold  in  Califor- 
nia, the  government  had  tacitly  recognized  the  occupation  of 
\is  mining  lands  as  such,  and  withheld  them  from  survey  and 
pre-emption. 


POSSESSORY  TITLE.  7 

Judicial  Recognition. 

The  judiciary  of  California  and  all  the  States  and  Terri- 
tories on  the  Pacific  Slope  had. recognized  the  "Miner's  Title" 
a.=  property  entitled  to  protection,  and  they  were  followed  by 
the  Supreme  Court  of  the  United  States  to  the  same  effect. — 
tiparrow  v.  Strong,  2  M.  R.  320,  3  Wall.  97,  18  L.  Ed.  49; 
Forbes  v.  Graceij,  14  M.  R.  183,  94  U.  S.  762,  24  L.  Ed.  313. 

Consecutive  Acts  of  1866,  1870  and  1872. 

In  1866  the  first  Act  was  passed  looking  to  the  absolute  dis- 
position of  mineral  veins.  In  1870  a  supplemental  Act  was 
passed  embracing  placers.  In  1872  these  Acts  were  revised 
and  the  Act  of  Congress  of  May  10  of  that  year,  found  in 
Chapter  6,  Title  32  of  the  Revised  Statutes  of  the  United 
States,  is,  with  slight  change,  the  Congressional  law  still  in 
force.  Reprinted  in  U.  S.  Compiled  Statutes  of  1901,  p.  1422. 


LEGAL  STATUS  OF  POSSESSORY  CLAIMS. 

The  National  Government  the  Source  of  Title. 

By  proper  expressions  in  the  Organic  Act  of  each  Territory 
and  the  Enabling  Act  of  each  State,  the  ownership  of  the 
United  States  in  the  public  domain  is  declared  as  fundamental 
law.  The  attempt  once  made  in  California  to  assert  a  State 
ownership  in  mines,  Hicks  v.  Bell,  3  Cal.  219,  has  long,  ago 
been  abandoned.— Moore  v.  Smaw,  12  M.  R.  429,  17  Cal.  199, 
79  Am.  Dec.  123.  The  title  to  all  lands  in  the  French  and 
Mexican  cessions  is,  in  the  first  instance,  in  the  United  States 
of  America,  excepting  grants  made  by  the  old  governments 
prior  to  the  treaties.  These  cessions  include  all  land  west  of 
the  Mississippi  River  except  the  old  Territory  of  Oregon. 

The  fee  simple  thus  remaining  in  the  government,  all  cit- 
izens, or  persons  who  have  declared  their  intention  to  become 
citizens,  are  allowed  to  enter  upon  the  unappropriated  public 


8  POSSESSORY  TITLE. 

domain  and  acquire  title  to  mineral  lands  by  complying  with 
certain  regulations  intended  to  preserve  the  peace  and  pro- 
tect the  first  occupant. 

Before  the  passage  of  Acts  of  Congress  to  this  effect,  the 
assertion  of  claims  to  mines  by  discoverers  had  been  recognized 
by  district  rules,  local  statutes  and  decisions  of  courts.  But 
ever  since  1866  the  matter  has  been  regulated  by  specific  Acts 
of  Congress,  supplemented  by  district  rules  and  local  legisla- 
tion concerning  the  details  of  location  and  the  manner  of 
perfecting  title. 

Texas. 

When  the  Republic  of  Texas  became  a  State  of  the  Union 
in  1845,  it  retained  ownership  of  all  its  public  lands.  The 
mining  laws  of  the  United  States  therefore  are  not  in  force 
there. 

In  1913  the  State  adopted  a  leasing  system,  charging  10  per 
cent  royalty  on  gas,  12^2  per  cent  on  oil,  5  per  cent  on  metals 
and  a  tonnage  rental  on  coal. 

It  provides  for  pre-empting  lode  claims,  1500  by  600  feet 
and  placer  claims  of  40  to  320  acres  by  procedure  modeled  on 
the  United  States  Mining  Law,  requiring  $100  annual  labor. 
Oil  and  gas  locations  are  limited  to  1280  acres,  and  1000 
acres  when  within  ten  miles  of  a  producing  well.  The  many 
details  of  the  Act  are  found  in  Chapter  173  of  the  thirty-third 
session  and  its  amendments  at  special  session  of  same  legis- 
lature, page  26. 

Whether  a  Vested  Estate. 

That  a  possessory  mining  claim  is  a  vested  estate  is  no 
longer  debatable.  It  is  "property  in  the  highest  sense  of  that 
term."  Its  legal  status  is  clearly  and  learnedly  stated  by 
GILBERT,  J.,  in  O'Connell  v.  Pinnacle  Co.,  140  F.  854,  4 
L.  R.  A.  (N.  S.)  919,  72  C.  C.  A.  645.  This  opinion,  as  well  as 
the  decision  which  it  affirms  (131  F.  106),  gives  the  distinc- 


POSSESSORY  TITLE.  9 

tion  between  such  a  mining  title  and  a  possessory  pre-emption 
or  homestead  title  in  cases  of  descent  before  patent. 

For  all  practical  purposes  the  owner  of  a  possessory  title  is 
considered  as  the  owner  in  fee. — Buchner  v.  Malloy,  100  P. 
687,  155  Cal.  253.  But  the  claim  is  still  public  land  within  the 
protection  of  the  A.  C.  forbidding  interference  with  mineral 
surveyors.— U.  S.  v.  Fickett,  205  F.  134,  123  C.  C.  A.  366. 

The  Miner  Holds  a  Qualified  Title 

dependent  upon  possession  and  maintained  by  compliance  with 
local  directions.  He  is  not  compelled  to  advance  to  patent  nor 
to  pay  for  tn*e  use  of  the  land,  but  his  holding  is  of  the'  same 
legal  class  as  a  homestead  or  pre-emption  and  is  in  anticipation 
of  an  ultimate  entry  and  patent.  His  title  is  not  absolute  in 
a  technical  sense,  nor  secure  in  a  practical  sense,  until  he  gets 
the  fee  simple  title  by  such  proceedings. 

Abandonment. 

Such  an  estate,  dependent  upon  possession,  is  conversely 
one  which  may  be  lost  by  abandonment. — Merritt  v.  Judd,  6 
M.  R.  62,  14  Cal.  59 ;  Mallett  v.  Uncle  Sam  Co.,  1  M.  R.  18, 
1  Nev.  188,  90  Am.  Dec.  484. 

Is  a  Freehold. 

That  is  to  say,  an  estate  which  passes  to  the  heirs. — Harris 
v.  Equator  Co.,  12  M.  R.  178,  8  F.  863 ;  White  Star  Co.  v.  Hult- 
berg,  220  111.  578,  77  N.  E.  327;  McFeters  v.  Pierson,  15  Colo. 
201,  .22  Am.  St.  Rep.  388,  24  P.  1076 ;  Keeler  v.  Trueman,  15 
Colo.  143,  25  P.  311 ;  Bradford  v.  Morrison,  212  U.  S.  389,  53 
L.  Ed.  564,  29  Sup.  Ct.  Rep.  349. 

Is  Real  Estate. 

The  miner's  claim  or  title  is  real  estate  as  distinguished  from 
chattel  or  personal  property  and  is  conveyed,  sued  for,  de- 
scends, is  devisable  and  is  treated  in  other  respects  as  the  real 
property  of  the  occupant,  subject  only  to  the  paramount  title 


10  POSSESSORY  TITLE. 

of  the  United  States. — Roseville  Co.  v.  Iowa  Gulch  Co.,  1G 
M.  R.  93,  15  Colo.  29,  22  Am.  St.  Rep.  373,  24  P.  920 ;  Butie 
Co.  v.  Frank,  21  M.  R.  368,  25  Mont.  344,  65  P.  1 ;  Bradford  v. 
Morrison,  10  Ariz.  214,  86  P.  6 ;  Arnold  v.  Goldfield  Co.,  32 
Nev.  447,  109  P.  718;  Wallace  v.  Hudson,  170  Cal.  596,  150 
P.  988 ;  Trinity  Co.  v.  Beaudry,  223  F.  739. 

The  Distinctions  Between  Mining  Claims 

and  other  classes  of  realty  are  substantially  those  arising  out 
of  the  following  incidents : 

1.  The  title  being  first  acquired  by  possession,  it  may  be 
lost  by  acts  amounting  to  a  discontinuance  of  possession ;  that 
is,  by  abandonment. 

2.  Annual  labor  upon  each  claim  is  required  by  Act  of 
Congress  as  a  condition  upon  the  non-performance  of  which 
the  same  consequences  result  as  in  the  case  of  a  technical 
abandonment;  that  is,  the  ground  becomes  open  to  the  entry 
of  the  next  occupant. 

3.  The  formula  of  notice  and  recording,  and  the  method 
of  initiating  title  are  subject  to  regulation  by  the  State,  Ter- 
ritory or  Mining  District,  in  details  not  covered  by  the  Acts 
of  Congress. 

4.  Special  modes  of  assessment  and  collection  of  taxes  are 
or  have  been  attempted;  but  distinctions  of  this  sort  have 
generally  been  found  impracticable. 

5.  There  are  statutes  to  prevent  forcible  dispossession  of 
claimants,  to  allow  of  underground  surveys  and  inspection  and 
to  regulate  drainage. 

6.  The  mode  of  perfecting  patent  in  the  IT.  S.  Land  Office 
is  wholly  different  from  that  regulating  entries  upon  agri- 
cultural lands. 

Federal  Decisions  Control. 

It  may  as  well  be  here  stated  that  in  all  cases  where  the 
Mining  Acts  of  Congress  are  construed  and  there  is  a  conflict 
of  authority  between  the  State  and  Federal  Courts  the  de- 


SCHOOL  CLAIMS  — SOLDIERS'  CLAIMS.  11 

cisions  of  the  Federal  Courts  prevail  over  the  State  decisions, 
and  those  of  the  U.  S.  Supreme  Court  prevail  over  all. — Street 
v.  Delta  Co.,  42  Mont.  371,  112  P.  701  j  Clark  Montana  Co.  v. 
Butte  Co.,  233  F.  548. 

State  Statutes  are  of  no  more  force  than  district  rules.— 
Clark  Montana  Co.  v.  Butte  Co.,  233  F.  548. 


SCHOOL  CLAIMS. 

More  than  half  of  all  the  sections  of  the  early  Colorado 
Statutes  on  the  subject  of  mines  was  taken  up  by  a  persistent 
attempt  to  force  a  "School  Claim"  on  each  location.  The 
whole  effort  was  in  violation  of  the  Organic  Act,  was  abso- 
lutely void  and  has  long  been  obsolete.  It  was  repudiated 
by  the  miners  as  an  attempt  to  put  the  whole  cost  of  schools 
on  a  class  of  men  who,  as  a  rule,  were  not  persons  with  families. 

By  Act  of  1862,  claim  No.  3,  east  or  west,  was  to  be  set 
apart  for  schools;  by  Act  of  1866,  one  side  claim  on  each 
end  of  the  discovery  claim  of  1,400  feet  was  to  be  recorded — 
100  feet  for  schools  and  100  feet  for  disabled  miners. 


SOLDIERS'  CLAIMS. 

By  Territorial  Acts  passed  in  instances  during  the  civil  war, 
claims  belonging  to  soldiers  were  protected  from  forfeitu're 
during  enlistment  and  for  a  reasonable  time  thereafter;  they 
were  also  allowed  to  locate  and  record  claims  by  proxy;  and 
their  titles  were  protected  from  sale  on  execution  during  their 
absence. 

During  the  Spanish  war  Congress  passed  an  act,  relieving 
volunteers  from  performance  of  annual  labor  during  their 
term  of  service.  It  required  the  record  of  a  notice  stating  the 
fact  of  enlistment  and  of  "His  desire  to  hold  said  claim  under 


12  LENGTH  OP  OLD  LODE  CLAIM. 

this  Act."— 30  St.  L.  651;  Mining  Rights  llth  Ed.  16.  A 
notice  filed  under  this  Act  was  considered  in  Field  v.  Tanner, 
32  Colo.  278,  75  P.  916. 


LENGTH  OP  LODE  CLAIM  LOCATED  BEFORE 

MAY  10,  1872. 


3,000-Foot  Act  of  Congress  of  1866. 

Sec.  4.  *  *  *  No  location  hereafter  made  shall  exceed  two  hun- 
dred feet  in  length  along  the  vein  for  each  locator,  with  an  additional 
claim  for  discovery  to  the  discoverer  of  the  lode,  with  the  right  to  follow 
such  vein  to  any  depth,  with  all  its  dips,  variations,  and  angles,  together 
with  a  reasonable  quantity  of  surface  for  the  convenient  working  of  the 
same  as  fixed  by  local  rules.  And  provided  further,  That  no  person 
may  make  more  than  one  location  on  the  same  lode,  and  not  more  than 
three  thousand  feet  shall  be  taken  in  any  one  claim  by  any  association 
of  persons. — July  26,  1866.  Repealed  May  10,  1812. 

Before  the  Act  of  Congress  of  1866 

the  length  of  lode  claims  was  regulated  either  by  district  rules 
or  by  State  or  Territorial  legislation.  It  was  by  no  means 
uniform.  Short  lengths  of  100  or  200  feet,  sometimes  as  low 
as  50  feet,  were  the  limitations  under  the  older  district  rules. 
In  later  years  the  tendency  was  to  allow  longer  claims.  In 
Colorado  the  statute  fixed  the  length  of  a  claim  in  1861  at  100 
feet;  in  1866  at  1,400  feet.  The  Act  of  Congress  of  1866 
allowed  400  feet  to  the  discoverer  and  a  claim  of  200  feet  to 
each  associate  locator,  not  exceeding  3,000  feet  on  the  lode 
under  one  location. 

Associates  and  Side  Claims. 

It  is  impossible  to  understand  the  limitations  on  the  size  of 
claims  without  considering  a  certain  custom  which  originated 
in  the  earliest  mining  camps  of  California  and  became  a  gen- 
eral practice  over  the  western  slope.  "With  slight  local  modi- 


LENGTH  OF  OLD  LODE  CLAIM.  13 

fications  this  custom  was  for  the  discoverer  to  record  a  notice 
that  he  claimed  50,  100  or  200  feet,  as  the  case  might  be,  on 
a  certain  lode.  On  the  same  paper,  or  by  a  separate  paper 
signed  later,  other  parties  would  give  notice  of  claim  to  No.  1 
East,  No.  1  West,  etc.,  on  the  same  lode.  Not  only  would  the 
associates  of  the  discoverer  make  such  records,  but  often  third 
parties,  without  even  going  on  the  ground,  would  file  on  these 
side  claims — in  instances  to  the  extent  of  several  thousand 
feet  on  each  side  from  the  discovery  claim. 

Joint  Records. 

In  other  districts  the  discoverer  and  his  associates  would  file 
on  the  discovery  claim,  No.  1  East,  No.  1  West,  No.  2  West, 
etc.,  indefinitely  by  a  joint  location  certificate,  not  attempting 
to  segregate  the  feet  claimed  by  one  from  the  feet  claimed  by 
the  other. 

Record  Without  Location  Work. 

These  side  claims,  whether  taken  separately  or  as  one  joint 
location,  were  supposed  to  be  at  least  staked  off  on  the  ground, 
but  no  discovery  hole  was  required,  and,  in  fact,  in  most 
cases,  only  the  paper  record  was  made  and  the  claims  seldom 
pursued  further,  unless  developments  on  the  discovery  claim 
seemed  to  indicate  that  the  side  claims  might  be  of  value. 
Such  was  not  the  original  intention  of  the  miners,  but  the 
custom  degenerated  to  this,  and  the  records  of  thousands  of 
such  claims  remain,  whose  owners  never  did  any  work  upon, 
nor  ever  knew  the  exact  situation  of  their  claims. 

Nominal  Associates  Conveying  to  Discoverer. 

This  privilege  to  locate  side  claims  was  soon  taken  advantage 
of  by  the  discoverer,  who  procured  nominal  parties  to  record, 
and  immediately  after  recording  to  convey  their  claims  to 
him,  and  as  soon  as  the  Act  of  Congress,  1866,  was  passed, 
such  became  the  universal  practice,  the  custom  as  it  already 
existed  being  altered  only  in  this:  That  the  claims  were  no 


14  LENGTH  OF  OLD  LODE  CLAIM. 

longer  numbered,  but  were  taken  together  as  a  joint  location 
by  a  supposed  association  of  fourteen  persons,  taking  fifteen 
claims  of  200  feet  each,  or  3,000  feet  in  all— the  discoverer 
being  allowed  one  additional  claim.  Further,  after  the  pass- 
age of  such  Act,  the  staking  of  the  lode  into  its  several  claims 
was  abandoned  altogether.  Before  the  Act  each  locator  usually 
recorded  one  specific  claim,  in  which  the  other  locators  had  no 
interest,  nor  he  in  theirs,  but  after  the  Act,  the  record  almost 
always  showed  a  joint  location  of  undivided  claims. 

Validity  of  Such  Nominal  Records. 

It  is  more  than  doubtful  whether  at  any  time,  as  against  an 
adverse  bona  fide  claim,  such  nominal  side  claims  were  by  the 
record  alone,  of  any  validity,  unless  actually  possessed  and 
defined  upon  the  ground  in  some  manner;  Cons.  Rep.  Co.  v. 
Lebanon  Co.,  15  M.  R.  490,  9  Colo.  343,  12  P.  212;  Becker  v. 
Pugli,  15  M.  R.  304,  9  Colo.  589,  13  P.  906 ;  Hess  v.  Winder, 
12  M.  R.  217,  30  Cal.  349 ;  but  the  practice  of  the  Land  Office 
is  to  patent  such  claims  without  inquiry,  if  sufficient  develop- 
ment for  patent  has  been  done  on  any  one  of  them,  or  on  the 
discovery. 

Length  of  Lode  Claim  at  Various  Dates  in  Colorado. 

1.  Prior  to  Nov.  7,  1861,  the  length  of  a  lode  claim  was 
fixed  by  district  rules. 

2.  From  Nov.  7,  1861,  to  March  11,  1864,  the  length  of  a 
claim  was  100  feet,  but  an  indefinite  number  of  claims  could 
be  based  on  a  single  discovery. 

3.  From  March  11,  1864,  to  Feb.  9,  1866,  100  feet  was  the 
length  of  a  claim,  and  sixteen  claims  of  that  length  could  be 
based  on  a  single  discovery. 

4.  From  Feb.  9,  1866,  to  July  26,  1866,  1,400  feet  was  the 
length  of  a  claim  and  the  limit  of  a  location. 

5.  From  July  26,  1866,  to  Feb.  11,  1870,  200  feet  was  the 
length  of  a  claim  and  1,400  feet  could  be  taken  under  one 
location. 


PRESENT  LENGTH  OF  LODE  CLAIMS.  15 

6.  From  Feb.  11,  1870,  to  May  10,  1872,  200  feet  was  the 
length  of  a  claim  and  3,000  feet  could  be  taken  under  one 
location. 

7.  Since  May  10,  1872,  1,500  feet  is  the  length  of  a  claim. 


LENGTH  OF  LODE  CLAIM  SINCE  MAY  10,  1872. 


Not  to  Exceed  1,500  Feet. 

E.  S.  Sec.  2320. — Mining-claims  upon  veins  or  lodes  of  quartz  or  other 
rock  in  place  bearing  gold,  silver,  cinnabar,  lead,  tin,  copper,  or  other 
valuable  deposits,  heretofore  located,  shall  be  governed  as  to  length 
along  the  vein  or  lode  by  the  customs,  regulations,  and  laws  in  force  at 
the  date  of  their  location.  A  mining-claim  located  after  the  tenth  day 
of  May,  eighteen  hundred  and  seventy-two,  whether  located  by  one 
or  more  persons,  may  equal,  but  shall  not  exceed,  one  thousand  five  hun- 
dred feet  in  length  along  the  vein  or  lode;  *  *  *  — Sec.  2,  May  10, 
1872. 

Since  May  10, 1872, 1,500  Feet 

has  been  the  well-known  limit  of  a  lode.  This  number  of  feet 
constitutes  one  undivided  claim,  or  one  lode  as  the  word  is 
commonly  used — that  is,  so  much  of  a  vein  as  is  covered  by 
one  location  based  upon  a  single  discovery — and  in  practice 
so  much  of  one  vein  as  is  known  by  a  single  name  and  covered 
by  a  single  record.  The  length  of  1,500  feet  is  the  uniform 
length  wherever  the  mining  acts  are  in  force.  A  State  Statute 
could  not  shorten  this  length  in  opposition  to  the  positive  per- 
mission of  the  Act  of  Congress  above  printed.  It  is  the  length 
almost  invariably  expressed  in  the  location  certificate  and  is 
rarely  shortened  except  where  only  a  fraction  of  clear  ground 
remains  to  be  taken  up. 

Length — How  Distributed. 

This  length,  by  common  usage,  is  taken  750  feet  on  each 
side  of  center  of  discovery;  but  it  may  be  taken  all  on  one 
side  except  enough  to  include  the  discovery  shaft  itself,  or  it 


16  PRESENT  LENGTH  OF  LODE  CLAIMS. 

may  be  distributed  in  any  desired  proportion  from  the  center 
of  the  discovery  shaft. 

Location  of  Excessive  Length. 

The  import  of  the  decisions  on  this  point  seems  to  be  that 
an  inadvertent  over-stepping  of  the  legal  length  or  width  will 
not  avoid  the  claim ;  Richmond  Co.  v.  Rose,  114  U.  S.  576,  29 
L.  Ed.  273,  5  Sup.  Ct.  Rep.  1055;  Burke  v.  McDonald,  2  Ida. 
679,  17  M.  R.  325,  33  P.  49 ;  Hanson  v.  Fletcher,  10  Utah  266, 
37  P.  480;  McElligott  v.  Krogh,  151  Cal.  126,  90  P.  823;  but 
that  the  claim  as  to  the  excess  is  void;  Hauswirth  v.  Butcher, 
4  Mont.  299,  1  P.  714;  Gohres  v.  Illinois  Co.,  40  Or.  516,  67  P. 
666;  McPherson  v.  Julius,  17  S.  Dak.  98,  95  N.  W.  428. 

A  gross  excess,  made  without  excuse  or  evidently  to  take 
up  more  ground  than  allowed,  makes  the  location  void. — Leg- 
gait  v.  Stewart,  15  M.  R.  358,  5  Mont.  107,  2  P.  320;  Nicholls 
v.  Lewis  Co.,  18  Ida.  224,  28  L.  R.  A.  (N.  S.)  1029, 109  P.  846. 

The  excess  is  open  to  location. — Flynn  Co.  v.  Murphy,  18 
Ida.  266,  138  Am.  St.  Rep.  201,  109  P.  851;  Swanson  v. 
Koeninger,  25  Ida.  361, 137  P.  891. 

An  excess  staking  in  length  or  width  does  not  invalidate, 
except  as  to  the  excess,  when  made  without  fraud  (in  this  case 
by  stepping  the  lines)  and  the  mistake  has  been  corrected  be- 
fore the  rights  of  third  parties  attached. — Stem-Winder  Co.  v. 
Emma  Co.,  2  Ida.  (456)  421,  21  P.  1040.  The  amended  rec- 
ord was  allowed  to  relate  back  in  Gobert  v.  Butterfield,  23  Cal. 
App.  1,  136  P.  516. 

The  locator  may  draw  in  his  end  line  and  so  abandon  the 
excess;  and  an  excess  of  150  feet  is  not  evidence  of  fraud. — 
Cardoner  v.  Stanley  Co.,  193  P.  517. 

But  where  the  excess  was  such  that  the  end  stakes  could 
not  be  found  on  search  within  several  hundred  feet  the  loca- 
tion is  not  valid. — Ledoux  v.  Forester,  94  P.  600.  And  where 
there  was  a  gross  excess  both  in  length  and  width  in  connec- 
tion with  a  trifling  attempt  to  mark  the  boundaries,  the 
location  was  held  void. — Madeira  v.  Sonoma  etc.  Co.,  20  Cal. 
App.  719, 130  P.  175. 


WIDTH  OF  OLD  LODE  CLAIMS.  17 

WIDTH  OF  LODE  CLAIM  LOCATED  BEFORE 

MAY  10,  1872. 


Indefinite  Under  A.  C.  1866. 

Sec.  4. — No  location  hereafter  made  shall  exceed  two  hundred  feet 
*  *  *  together  with  a  reasonable  quantity  of  surface  for  the  con- 
venient working  of  the  same,  as  fixed  by  local  rules. — July  26,  1866. 
Repealed  May  10,  1878. 

At  the  time  of  the  passage  of  this  A.  C.  allowing  "reasonable 
quantity  of  surface"  for  convenient  working,  the  width  was 
fixed  by  District  Rule  at  very  generally  50  feet,  sometimes 
more  and  even  less. 

A  Colorado  Act  of  February  9, 1866,  allowing  parallel  veins, 
spurs  and  feeders  within  25  feet  from  the  center  of  the  dis- 
covery lode  to  belong  to  the  claim  was  construed  as  fixing  the 
width  at  50  feet.— Parleys  Park  Co.  v.  Kerr,  17  M.  R.  201,  130 
U.  S.  256,  32  L.  Ed.  906,  9  Sup.  Ct.  Rep.  511. 

Prior  to  the  Act  of  Congress  of  1872,  the  width  of  claims 
had  been  considered  merely  as  a  question  of  sufficient  surface 
for  convenient  working. 


WIDTH  OF  LODE  CLAIM  SINCE  MAY  10,  1872. 


Limits  Allowed  by  Present  U.  S.  Law. 

E.  S.  Sec.  2320.  *  *  *  No  claim  shall  extend  more  than  three 
hundred  feet  on  each  side  of  the  middle  of  the  vein  at  the  surface, 
nor  shall  any  claim  be  limited  by  any  mining  regulation  to  less  than 
twenty-five  feet  on  each  side  of  the  middle  of  the  vein  at  the  surface, 
except  where  adverse  rights  existing  on  the  tenth  day  of  May,  eighteen 
hundred  and  seventy-two,  render  such  limitation  necessary.  The  end- 
lines  of  each  claim  shall  be  parallel  to  each  other. — Sec.  g,  May  10, 
1872. 


18  PRESENT  WIDTH  OF  LODE  CLAIMS. 

Present  Width  Fixed  by  Colorado  Statute. 

R.  S.  Sec.  4193.  The  width  of  lode  claims  hereafter  located  in  Gilpin, 
Clear  Creek,  Boulder  and  Summit  counties,  shall  be  one  hundred 
and  fifty  feet  on  each  side  of  the  center  of  the  vein  or  crevice;  in  al! 
other  counties  the  width  of  the  same  shall  be  three  hundred  feet  on 
each  side  of  the  center  of  the  vein  or  crevice;  and  the  owner  or  owners 
of  any  lode  claim  or  claims  heretofore  located  and  having  a  less  width, 
desirous  of  securing  the  benefit  of  this  act  may  file  an  additional  cer- 
tificate claiming  such  additional  width  as  herein  provided;  provided, 
That  hereafter  any  county  may,  at  any  general  election,  determine 
upon  a  greater  width  not  exceeding  three  hundred  feet  on  each  side 
of  the  center  of  the  vein  or  lode,  by  a  majority  of  the  legal  votes  cast 
at  said  election,  and  any  county  by  such  vote  at  such  election  may  deter- 
mine upon  a  less  width  than  above  specified.  Act  of  May  14,  1913,  Stats. 
p.  413. 

By  Act  of  1874,  passed  to  conform  to  the  A.  C.  of  1872,  the 
legislature  conceded  the  narrow  width  of  150  feet  to  the  same 
four  counties  mentioned  in  the  above  printed  Act  of  1913  and 
allowed  300  feet  to  the  rest  of  the  state.  This  remained  the  law 
until  1911  when  the  uniform  width  of  300  feet  was  adopted 
and  in  1913  the  width  throughout  the  state  was  increased  to 
600  feet  except  in  the  four  counties  originally  limited  to  the 
narrower  width.  The  proviso  about  submitting  change  of 
width  to  local  election  is  mere  surplusage. 

All  the  Other  States  and  Alaska 

allow  the  full  limit  of  600  feet  width,  except  North  Dakota, 
which  fixes  the  width  at  300  feet,  allowing  counties  to  increase 
or  decrease  it  within  the  Congressional  limit 

Center  of  Vein,  Center  of  Claim. 

It  will  be  observed  that  the  center  of  the  lode  is  made  the 
center  of  this  width.  If,  therefore,  a  party  attempt  to  locate 
more  than  half  the  extreme  width  on  either  side  of  his  vein, 
the  location  of  such  excess  is  without  authority  of  law,  al- 
though the  entire  width  be  within  the  statutory  limit. — Taylor 
v.  Parenteau,  23  Colo.  3G8,  18  M.  R.  534,  48  P.  505. 


PRESENT  WIDTH  OF  LODE  CLAIMS.  19 

By  Statute,  in  Wyoming,  the  discovery  shaft  must  be  equi- 
distant from  the  side  lines  of  the  claim. 

Record  of  Excessive  Width. 

The  Surveyor-General  will  not  issue  an  order  for  survey  for 
patent  upon  a  location  certificate  which  claims,  in  terms,  on 
its  face,  more  than  the  total  width  allowed  or  with  an  excess 
of  more  than  one-half  of  the  legal  width  on  either  side  of  the 
center  of  the  discovery  vein,  and  it  is  doubtful  whether  any 
court  would  receive  such  certificate  in  evidence.  Such  mis- 
takes are  the  work  of  surveyors  who  undertake  to  put  their 
field  notes  into  the  form  of  a  location  certificate  in  total 
ignorance  of  what  constitutes  a  valid  location  certificate.  This 
document  should  be  drawn  by  a  competent  attorney. 

But  there  is  nothing  to  prevent  a  location  of  one-half  the 
statutory  width  on  one  side  the  center  of  the  vein  and  less 
than  one-half  on  the  other  side  of  such  center  line. 

A  location  of  excessive  width  is  not  void  and  a  second  loca- 
tion can  not  on  such  pretense  take  in  the  actual  workings  of 
the  first  party.— Mclntosh  v.  Price,  121  F.  716,  58  C.  C.  A.  136. 

Where  the  lines  were  in  zigzag  form,  thus  making  excessive 
width,  the  department  required  an  amended  survey. — 34  L.  D. 
470. 

Excess  by  Vein  Approaching  Side  Line. 

It  is  true  that  it  may  not  be  known  when  the  stakes  are  set 
what  the  course  of  the  lode  may  be,  and  honest  errors  in  this 
respect  may  readily  be  committed ;  but  the  vein  being  the  basis 
of  location,  and  it  having  been  decided  that  when  a  vein  leaves 
the  side  lines  of  its  location,  the  claim  both  as  to  veins  and 
surface  beyond  that  point  is  void,  it  necessarily  folloAvs,  where 
either  side  line  is  found  at  any  point  to  be  more  than  the  legal 
distance  from  the  center  of  the  vein,  that  the  location  of  such 
excess  in  width  has  not  been  based  upon  a  vein  lying  within 
the  statutory  limits,  and  comes  within  the  same  reasoning 
which  renders  all  that  portion  of  the  location  void  in  \vhirh  no 


20 


PRESENT  WIDTH  OF  LODE  CLAIMS. 


vein  is  found. — Patterson  v.  Hitchcock,  3  Colo.  533,  5  M.  R. 
542.  But  no  such  fact  would  vitiate  any  part  of  the  claim 
after  patent  issued. — Peabody  Co.  v.  Gold  Hill  Co.,  97  F.  657. 


The  above  cut  illustrates  the  preceding  paragraph.  The 
shaded  ground  shows  an  excess  over  the  allowed  300  feet 
from  the  center  of  the  vein.  A  valid  hostile  discovery  could 
be  made  upon  such  shaded  ground  or  a  location  made  taking 
it  in.  The  plat  shows  a  claim  of  600  feet  width. 

Excess — How  Corrected. 

The  case  of  McElligott  v.  Krogh,  151  Cal.  126,  90  P.  823, 
serves  further  to  illustrate  the  diagram  and  shows  at  the 
same  time  how  the  error  is  to  be  corrected  and  new  lines  estab- 
lished. Upon  development  after  location  the  discovery  vein  of 
the  Live  Oak  lode  claim  was  found  to  run  in  such  direction 
that  its  N.  W.  corner  was  320  feet  from  the  "middle  of  the 
vein,"  that  is  to  say,  20  feet  beyond  the  point  at  which  it 
could  legally  be  placed.  The  Appellate  Court  reset  this  cor- 
ner by  drawing  it  in  20  feet  toward  the  vein  and  fixed  the 
west  side  line,  by  drawing  a  straight  line  from  the  new  cor- 
ner to  the  point  on  the  original  west  side  line  where  the  excess 
first  began;  allowing  the  original  west  side  line  to  stand  from 
that  point  to  the  S.  W.  corner  which  was  within  the  300  feet. 
See  diagram,  90  P.  824. 

But  in  the  later  case  of  Harper  v.  Hill,  159  Cal.  250,  113  P. 
163,  the  Supreme  Court  held  that  an  excess  of  over  300  feet 
from  the  center  of  the  discovered  lode  was  good  to  the  entire 


DISCOVERY  AND  LOCATION.  21 

width,  Avhere  the  location  was  made  in  good  faith.  This  dis- 
tinction is  not  attempted  in  any  of  the  other  cases  cited  on 
this  point  and  does  not  seem  tenable. 


DISCOVERY  AND  LOCATION  OF  LODES  BEFORE  THE 
ACTS  NOW  IN  FORCE. 

Mode  of  Location  Not  Strict. 

Prior  to  1866  there  was  no  United  States  law  regulating  lode 
locations.  Nor  did  that  law  state  any  definite  formula  further 
than  to  limit  the  extreme  width  and  length.  Nor  were  the 
requirements  of  the  State  or  Territorial  Legislatures  usually 
specific.  Either  by  statute  or  by  district  rule  a  discovery  was 
always  required  and  a  notice  at  the  point  of  discovery,  and 
in  many  districts  such  a  staking  as  would  indicate  the  extreme 
points  to  which  the  claim  extended.  In  1866  by  statute  in 
Colorado  a  location  stake  and  a  ten-foot  discovery  shaft  were 
required.  In  other  States  and  Territories  even  these  initial 
and  essential  points  were  left  entirely  to  district  regulations. 

In  all  cases  the  actual  disclosure  of  the  vein,  and  not  merely 
the  float  or  indication  of  the  vein,  was  required,  and  the  stake 
was  supposed  to  give  the  name  of  the  lode  and  its  locator, 
with  usually  the  date  of  discovery  and  the  number  of  feet  in 
each  direction. 

That  some  act  of  location  was  required  has  never  been  dis- 
puted. But  in  the  absence  of  district  rules,  what  would 
amount  to  a  sufficient  location  can  only  be  defined  as  such 
acts  of  appropriation  as  would  amount  to  a  declaration  that 
the  locator  had  appropriated  the  ground,  and  be  sufficient 
notice  to  other  prospectors  that  he  had  so  appropriated  it. — 
Hess  v.  Winder,  12  M.  R.  217,  30  Cal.  349 ;  English  v.  Johnson, 
12  M.  R,  203,  17  Cal.  107,  76  Am.  Dec.  574;  Attwood  v.  Fricot, 
2  M.  R.  305,  17  Cal.  38,  76  Am.  Dec.  567 ;  Gleeson  v.  Martin 


22  DISCOVERY  AND  LOCATION. 

White  Co.,  9  M.  R.  429, 13  Nev.  442  j  Gonu  v.  Russell,  12  M.  R. 
630,  3  Mont.  358. 

In  the  case  of  Cons.  Rep.  Co.  v.  Lebanon  Co.,  15  M.  R.  490, 
9  Colo.  343,  12  P.  212,  it  was  ruled  that  the  posting  of  the 
notice  and  the  recording  of  certificate  not  followed  by  develop- 
ment or  representation,  would  not  hold  the  claim  against  a 
subsequent  location.  See  also  Becker  v.  Pugh,  15  M.  R.  304,  9 
Colo.  589,  13  P.  906. 


DISCOVERY  AND  LOCATION  UNDER  LAWS  NOW  IN 
FORCE. 


Discovery  Required. 

R.  S.  See.  2320.  *  *  *  No  location  of  a  mining  claim  shall  be 
made  until  the  discovery  of  the  vein  or  lode  within  the  limits  of  the 
claim  located.  •  •  •  —  Sec.  2,  A.  C.  May  10,  1872. 

Starting  and  Record. 

R.  S.  Sec.  2324. — The  miners  of  each  mining  district  may  make  regu- 
lations not  in  conflict  with  the  laws  of  the  United  States,  or  with 
the  laws  of  the  State  or  Territory  in  which  the  district  is  situated,  gov- 
erning the  location,  manner  of  recording,  amount  of  work  necessary  to 
hold  possession  of  a  mining  claim,  subject  to  the  following  requirements : 
The  location  must  be  distinctly  marked  on  the  ground  so  that  its  beun- 
daries  can  be  readily  traced.  *  *  *  — Sec.  5,  A.  C.  May  10,  1872. 

Discovery  Shaft,  Notice  and  Stakes  in  Colorado. 

R.  S.  Colo.  Sec.  4197. — Before  filing  such  location  certificate  the  dis- 
coverer shall  locate  his  claim  by: 

First — Sinking  a  discovery  shaft  upon  the  lode  to  the  depth  of  at 
least  ten  feet  from  the  lowest  part  of  the  rim  of  such  shaft  at  the  sar- 
face,  or  deeper,  if  necessary  to  show  a  well  defined  crevice. 

Second — By  posting  at  the  point  of  discovery  on  the  surface  a  plain 
sign  or  notice,  containing  the  name  of  the  lode,  the  name  of  the  locator, 
and  the  date  of  discovery. 


DISCOVEEY  AND  LOCATION.  23 

Third — By  marking  the  surface  boundaries  of  the  claim. — "Feb.  IS, 
1874. 

For  the  statutory  requirements  of  the  other  mining  States, 
see  p.  68. 

Corner  Posts,  Center  Posts. 

E.  S.  Colo.  Sec.  4198. — Such  surface  boundaries  shall  be  marked  by  six 
substantial  posts  hewed  or  marked  on  the  side  or  sides  which  are  in 
toward  the  claim,  and  sunk  in  the  ground  to-wit:  one  at  each  corner 
and  one  at  the  center  of  each  side  line.  Where  it  is  practically  impos- 
sible on  account  of  bed  rock  to  sink  such  posts,  they  may  be  placed 
in  a  pile  of  stones,  and  where  in  marking  the  surface  boundaries  of  a 
claim  any  one  or  more  of  such  posts  shall  fall  by  right  upon  precipitous 
ground,  where  the  proper  placing  of  it  is  impracticable  or  dangerous 
to  life  or  limb,  it  shall  be  legal  and  valid  to  place  any  such  post  at  the 
nearest  practicable  point,  suitably  marked  to  designate  the  proper  place. 
—Feb.  £,  1876. 

Open  Cuts  and  Tunnel  Discoveries. 

E.  S.  Colo.  See.  4199. — Any  open  cut,  cross-cut  or  tunnel  which  shall 
cut  a  lode  at  a  depth  of  ten  feet  below  the  surface,  shall  hold  such  lode, 
the  same  as  if  a  discovery  shaft  were  sunk  thereon,  or  an  adit  of  nt 
least  ten  feet  in  along  the  lode  from  the  point  where  the  lode  may  be  in 
any  manner  discovered,  shall  be  equivalent  to  a  discovery  shaft. — 
Feb.  13,  1874. 

Time  to  Sink  Discovery. 

E.  S.  Colo.  See.  4200.— The  discoverer  shall  have  sixty  days  from  the 
time  of  uncovering  or  disclosing  a  lode  to  sink  a  discovery  shaft  thereon. 
—Id. 

The  Doctrine  of  Appropriation  Would  Have  No  Application 

to  mining  and  water  claims  on  the  Pacific  Slope  if  the 
lands,  before  the  discovery  of  minerals,  had  passed  into  the 
hands  of  private  owners ;  nor  to  the  government  itself,  if  the 
government  had  chosen  either  to  treat  the  miners  as  tres- 
passers or  to  arbitrarily  dispose  of  the  lands  at  public  s.-ilo. 
Instead  of  adopting  any  such  policy,  the  United  States  fcr 
many  years  tacitly,  and  since  1866  by  positive  enactment, 


24  DISCOVERY  AND  LOCATION. 

opened  the  lands  to  the  explorer  and  occupant ;  in  other  words, 
the  mineral  lands  were  offered  to  the  first  appropriator. 

The  Acts  of  Appropriation,  As  to  Mineral  Lands, 

are  equivalent  to  such  acts  as  would  amount  to  occupation  in 
other  cases;  there  must  be  an  intent  to  possess  the  claim,  such 
acts  of  appropriation  as  are  sufficient  to  carry  out  this  inten- 
tion, and  finally  such  acts  must  have  such  publicity  by  record 
as  to  operate  as  notice  to  all,  that  the  lands  have  been  actually 
appropriated. 

The  appropriation  of  a  mine,  the  appropriation  of  water 
for  mining  or  irrigating  purposes,  and  the  occupation  of  home- 
stead land  are  therefore  in  substance  the  same,  and  differ 
only  so  far  as  the  various  subject  matters  differ,  the  criterion 
in  each  case  being  the  intent  of  the  occupant  to  segregate  a 
certain  portion  of  the  public  domain  to  his  several  use,  fol- 
lowed by  acts  manifesting  such  intention  with  such  publicity 
as  is  due  to  the  rights  of  third  parties. — Sparrow  v.  Strong, 
2  M.  R.  320,  3  Wall.  97,  18  L.  Ed.  49;  Gore  v.  McBrayer, 
1  M.  R.  645, 18  Cal.  583. 

The  Right  of  Appropriation  Is  Now  Regulated 

by  statute  to  a  greater  or  less  extent  in  most  of  the  States  and 
Alaska,  so  that  the  appropriator  must  not  only  occupy  the 
ground,  but  must  segregate  his  claim  and  otherwise  comply 
with  the  law,  which  attempts  to  reduce  to  detail  the  above 
general  principles. 

These  statutes  fix  a  time  for  the  process  of  location  and 
record  and  require  certain  acts  to  be  done  to  constitute  a 
valid  location.  In  all  the  Western  mining  States  except  Utah 
the  regulations  are  quite  specific.  They  have  copied  the  ear- 
lier Colorado  Statute  more  or  less  closely.  It  is  intended 
that  a  location  made  as  in  this  chapter  advised  would  be  valid 
in  any  State  or  Territory,  except  where  some  specific  statute 
calls  for  additional  requirements.  The  details  of  location  in 
each  State  are  tabulated  on  page  sixty-eight. 


DISCOVERY  AND  LOCATION.  25 

Where  Location  Begins  and  Ends. 

It  has  been  held  that  the  word  location  does  not  necessarily 
include  discovery.  That  a  stipulation  that  certain  lodes  were 
"located  in  compliance  with  law"  did  not  preclude  an  attack 
on  the  discovery.— Uinta  Co.  v.  Ajax  Co.,  141  F.  563,  73 
C.  C.  A.  35. 

The  Supreme  Court  of  Montana  says  that  the  acts  which, 
taken  together,  amount  to  a  location,  begin  with  the  discovery 
and  terminate  with  the  filing  for  record  of  the  declaratory 
statement.— Hickey  v.  Anaconda  Co.,  33  Mont.  46,  81  P.  811. 

In  Smith  v.  Union  Co.,  166  Cal.  966,  135  P.  966,  the  word 
"location"  is  denned  as  including  the  record  of  the  claim. 

These  decisions  are  not  in  accord  and  it  may  admit  of 
scholastic  discussion  as  to  whether  the  act  of  visual  discovery 
is  part  of  the  location,  and  also  whether  the  filing  of  the 
record  is  parcel  of  the  location  or  only  proclamation  of  the 
fact  of  location. 

Such  points  become  material  chiefly  in  cases  where  the  doc- 
trine of  relation  or  of  conclusive  presumptions  is  invoked.  In 
the  Federal  case  they  held  that  the  patent  did  not  prevent 
attack  on  the  date  of  discovery,  and  in  the  Montana  case  that 
the  date  of  filing  for  record  was  the  date  of  location.  See 
p.  119. 

Discarding  these  technical  distinctions  the  formal  acts  of 
appropriation  are :  (1)  Discovery.  (2)  Location.  (3)  Record. 

Discovery  the  Inception  of  Title. 

The  discovery  of  a  lode  of  itself  gives  title  to  the  vein  for 
such  length  of  time  as  is  allowed  by  law  for  the  completion 
of  the  location  and  record  (Hurley  v.  Ennis,  12  M.  R.  360, 

2  Colo.  300 ;  Erliardt  v.  Boaro,  15  M.  R.  472,  113  U.  S.  527, 
28  L.  Ed.  1113,  5  Sup.  Ct.  560)  ;  and  when  the  location  and 
record  are  made,  if  made  in  due  time,  the  inception  of  title 
relates  back  to  the  date  of  discovery. — Burke  v.  McDonald, 

3  Ida.  296,  29  P.  98.    From  this  fact  a  later  record  may  show 


26  DISCOVERY  AND  LOCATION. 

an  older  and  better  title  than  a  record  made  several  months 
earlier.— Patterson  v.  Hitchcock,  5  M.  R.  542,  3  Colo.  533.  For 
this  reason  it  is  advisable  for  the  location  certificate  to  recite 
the  date  of  discovery  as  well  as  the  date  of  location. 

If  the  statute  or  district  rule  does  not  fix  a  specific  time  for 
the  discoverer  to  follow  up  his  discovery  the  common  law 
allows  him  a  reasonable  time  to  do  each  act  required. 

Discovery  Denned. 

Discovery  means  the  acquirement  of  knowledge  that  such  a 
lode  exists  within  the  limits  of  the  claim. — Mason  v.  Wash- 
ington Co.,  214  F.  35, 130  C.  C.  A.  426. 

The  bona  fides  of  a  discovery  is  a  question  of  fact  for  the 
jury.— Eooney  v.  Barnette,  200  F.  700,  119  C.  C.  A.  116. 

Essentiality  of  Discovery— How  Proved. 

Where  a  location  is  made  without  discovery  the  land  remains 
public  domain  until  there  be  a  discovery. — Tuolumne  Co.  v. 
Maier,  134  Cal.  583,  66  P.  863.  The  fact  that  the  vendors  had 
no  valid  discoveries  may  be  proved  in  an  action  to  recover 
the  price  of  possessory  claims  sold  to  plaintiff. — Whitney  v. 
Haskell,  216  Pa.  622,  66  Atl.  101. 

The  fact  of  discovery  must  be  proved  by  the  party  alleging 
it  as  the  inception  of  his  possessory  right. — Sands  v.  Cruik- 
shank,  15  S.  D.  142,  87  N.  W.  589. 

The  location  notice  is  not  prima  facie  proof  of  discovery, 
but  where  both  claimants  posted  their  discovery  notice  at 
the  same  point  it  is  a  mutual  admission  that  there  was  a  lode 
discovered  there.— Fox  v.  Myers,  29  Nev.  169,  86  P.  793. 

Land  Office  Rulings  on  Discovery. 

The  sufficiency  of  proof  of  discovery  in  Land  Office  con- 
test is  considered  in  40  L.  D.  271 ;  and  its  elements  analyzed 
in  41  L.  D.  320.  A  discovery  on  porphyry  in  no  defined 
lode  formation  held  invalid.  41  L.  D.  242.  Id.  255.  Dis- 
covery must  be  made  before  filing  application  for  patent. 


DISCOVERY  AND  LOCATION.  27 

43  L.  D.  397.  Discovery  on  a  lode  claim  is  mandatory  and 
can  not  be  waived  by  the  Department.  41  L.  D.  320.  Id.  520. 
Where  the  old  discovery  has  been  lost  within  the  patent  of 
another  claim  there  must  be  a  new  discovery  of  the  fraction 
remaining.  42  L.  D.  481. 

The  Vein  Must  Be  Reached. 

The  discovery  is  not  complete  until  the  vein  itself  is  dis- 
closed. The  finding  of  float  or  loose  quartz  is  not  sufficient. 
There  is  a  custom  generally  respected  among  miners,  when 
any  person  has  discovered  indications  of  a  lode  and  is  dili- 
gently following  up  these  indications,  to  allow  thirty  days  in 
which  to  uncover  the  deposit;  but  if  another,  by  a  shorter 
cut,  should  first  actually  reach  the  vein,  it  would  seem 
that  the  first  prospector,  except  as  qualified  by  the  Boaro 
case  cited  below,  could  assert  no  priority;  and  such  has  been 
the  tenor  of  the  decisions. — Upton  v.  Larkin,  5  Mont.  600, 
6  P.  66;  North  N.  Co.  v.  Orient  Co.,  9  M.  E.  529,  1  F.  522, 
6  Sawy.  299;  Overman  Co.  v.  Corcoran,  I  M.  E.  691,  15  Nev. 
417.  In  Walsh  v.  Mueller,  16  Mont.  180,  40  P.  292,  the  facts 
which  constituted  the  discovery  are  stated  and  held  such  clear 
proof  as  warranted  the  reversal  of  a  finding  that  there  was  no 
discovery. 

The  fact  of  discovery  of  the  vein  may  be  inferred,  where 
not  proven  in  specific  terms,  by  the  use,  by  witnesses,  of  expres- 
sions which  would  be  meaningless  except  upon  the  assump- 
tion that  they  were  speaking  of  a  discovered  lode. — Conway  v. 
Hart,  129  Cal.  480,  21  M.  E.  20,  62  P.  44. 

Prospector's  Rights  Before  Discovery. 

If,  however,  a  prospector  has  discovered  float  or  other  indi- 
cations of  the  immediate  presence  of  the  vein  and  keeps  dili- 
gently at  work,  such  inchoate  discovery  has  practically  been 
held  by  the  National  Supreme  Court  in  ErJiardt  v.  Boaro,  15 
M.  E.  447,  113  U.  S.  537,  28  L.  Ed.  1116,  5  Sup.  Ct.  Eep.  565, 
equivalent  to  the  discovery  of  the  vein  in  place.  If  it  does 


28  DISCOVERY  AND  LOCATION. 

not  go  so  far  as  to  decide  that  the  prospector  could  at  once 
locate  upon  such  indications,  it  does  decide  that  he  has  not 
only  the  right  to  be  protected  in  his  possession  while  following 
up  such  indications,  but  that  he  will  be  protected  to  the  extent 
of  a  full  claim  when  his  location  is  complete. 

Excluding  the  fact  of  the  intimidation  which  was  in  proof 
in  that  case,  it  is  difficult  to  reconcile  the  opinion  with  the  Colo- 
rado Statute,  which  requires  a  well  defined  crevice  to  be  dis- 
closed, and  with  the  language  of  the  R.  S.  Sec.  2320,  which 
prohibits  any  location  until  the  discovery  of  the  vein.  What- 
ever the  effect  of  the  decision  in  giving  precedence  to  the 
prospector  upon  the  floe  as  against  the  actual  discoverer  of  the 
vein  itself,  it  ought  at  least  to  be  certain  that  no  such  disclosure 
of  indications  short  of  uncovering  the  vein  in  place  would  hold 
as  a  discovery  sufficient  to  stake  and  record  upon  and  leave  to 
the  protection  of  the  law,  as  the  miner  may  do  when  his  dis- 
covery, location  and  record  upon  the  lode  in  place  are  once 
absolute  and  complete;  but  when  accompanied  by  his  actual 
presence  on  the  ground  with  notice  posted,  the  question  of 
prior  discovery  in  fact  in  such  case  remains  a  question  for  the 
jury. 

A  lode  claimant  before  discovery  has  no  right  to  protection 
except  to  the  extent  of  his  bare  pedis  possessio. — Gemmell  v. 
Sw.ain,  28  Mont.  331,  98  Am.  St.  Rep.  570,  72  P.  662,  22  M.  R. 
716. 

The  hope  and  expectation  of  finding  can  not  avail  to  supplant 
the  required  disclosure  in  fact. — Ambergris  M.  Co.  v.  Day,  12 
Ida.  108,  85  P.  109.  But  where  the  lessee  of  an  oil  placer 
claim  is  sinking  a  well,  his  rights  will  be  protected  against  an 
attempt  to  claim  the  ground  by  locating  him  in. — Weed  v. 
Snook,  144  Cal.  439,  77  P.  1023. 

The  Discoverer  in  Law  Is  Not  Necessarily  the  Original 

finder,  but  any  one  who,  knowing  of  the  existence  of  the  min- 
eral, takes  some  step  toward  an  appropriation  of  the  land 
which  contains  it.— Nevada  Co.  v.  Home  Co.,  98  F.  673,  20 
M.  R.  283;  Jupiter  Co.  v.  Bodie  Co.,  11  F.  666,  7  Sawy.  96,  4 


DISCOVERY  AND  LOCATION.  29 

M.  R.  411.  It  is  assumed,  of  course,  in  such  case  that  the 
original  actual  discoverer  failed  to  perfect  his  initiatory  first 
right  by  location.  The  vein  may  be  disclosed  in  a  pit  sunk  on 
it  before  by  a  stranger. — Hayes  v.  Lavagnino,  17  Utah  185, 
53  P.  1029,  19  M.  R.  485. 

In  Zerres  v.  Vanina,  134  F.  610,  614,  it  is  said :  "  A  relocator 
is  not  a  discoverer  of  the  mineral,  but  an  appropriator 
thereof";  which  expression,  though  literally  true  and  correctly 
used  as  applied  to  the  facts  in  that  case,  may  be  misleading  if 
not  qualified.  A  relocator  must  disclose  the  lode  in  his  shaft 
the  same  as  the  original  locator,  and  may  do  so  at  a  point 
where  the  original  discoverer  never  supposed  it  to  exist,  or  by 
uncovering  a  new  vein  within  the  located  ground.  Tech- 
nically, therefore,  the  relocator  is  a  discoverer  as  much  as  the 
first  finder  of  the  lode,  and  in  his  record  in  States  which 
require  the  date  of  discovery  to  be  stated,  he  gives  his  "date 
of  discovery"  just  the  same. 

A  Location  on  Float  Ore,  the  Discovery  Opening  Not  Show- 
ing the  lode  in  place,  has  been  expressly  held  to  be  invalid. 
Several  tons  of  such  ore  had  been  extracted,  but  the  vein 
itself  from  which  it  came  had  not  been  defined. — Waterloo 
Min.  Co.  v.  Doe,  56  F.  685, 17  M.  R.  586. 

On  the  other  hand  an  Idaho  decision  allowed  a  location  to 
stand  good  made  upon  "indications  of  mineral,"  the  report, 
however,  leaving  it  very  indefinite  as  to  what  these  indications 
were.— Burke  v'.  McDonald,  3  Ida.  296,  29  P.  98. 

Discovery  is  a  question  of  fact  for  the  jury. — Columbia  C. 
Min.  Co.  v.  Duchess  Co.,  13  Wyo.  244,  79  P.  385. 

Discovery  After  Location. 

If  a  location  be  made  before  discovery,  but  is  followed  by  a 
discovery  in  the  discovery  shaft,  before  any  adverse  rights 
intervene,  such  subsequent  discovery  cures  the  original  defect 
and  the  claim  is  valid. — McGinnis  v.  Egbert,  8  Colo.  41,  5  P. 
652,  15  M.  R.  329;  Golden  Terra  Co.  v.  Malder,  4  M.  R.  390; 


30  DISCOVERY  AND  LOCATION. 

Jupiter  Co.  v.  Bodie  Co.,  11  F.  666,  7  Sawy.  96,  4  M.  R.  411  ; 
Zollars  v.  Evans,  5  F.  172,  4  M.  R.  407,  2  McCr.  39 ;  North 
Noonday  Co.  v.  Orient  Co.,  1  F.  522,  6  Sawy.  299,  9  M.  R.  529 ; 
Erwin  v.  Perego,  93  F.  608,  35  C.  C.  A.  482;  Nevada  Co.  v. 
Home  Co.,  98  F.  673,  20  M.  R.  283 ;  Brewster  v.  Shoemaker, 
28  Colo.  176,  89  Am.  St.  Rep.  188,  53  L.  R.  A.  793,  63  P.  309, 
21  M.  R.  155 ;  Weed  v.  Snook,  144  Cal.  439,  77  P.  1023 ; 
Sharkey  v.  Candiani,  48  Or.  112,  7  L.  R.  A.  (N.  S.)  791,  85  P. 
219,  and  the  Land  Department  has  followed  these  rulings. — 28 
L.  D.  526. 

But  where  a  location  and  record  were  made  with  no  dis- 
covery, a  subsequent  discovery  will  not  relate  back  and  cut 
out  an  intervening  location. — Seals  v.  Cone,  27  Colo.  473,  83 
Am.  St.  Rep.  92,  62  P.  948,  20  M.  R.  591. 

Discovery  is  good  when  it  follows  instead  of  preceding  the 
acts  of  location.— Whiting  v.  Straup,  17  Wyo.  1,  129  Am.  St. 
Rep.  1093,  95  P.  849. 

A  discovery  after  the  adverse  claim  was  filed  is  not  available 
to  the  plaintiff  —Healey  v.  Rupp,  37  Colo.  25,  86  P.  1015. 

Discovery  and  Discovery  Shaft  Distinguished. 

The  fact  of  discovery  is  a  fact  of  itself,  to  be  totally  dis- 
connected from  the  idea  of  discovery  shaft.  The  discovery 
shaft  is  a  part  of  the  process  of  location,  subsequent  to  dis- 
covery. If  a  lode,  for  instance,  be  discovered  in  a  cross-cut 
run  to  operate  some  other  known  vein,  or  if  a  prospect  hole 
be  dug  on  the  outcrop  of  a  lode,  and  no  steps  are  taken  to  stake 
and  record  such  hole,  it  becomes  no  more  the  property  of  the 
owner  of  the  cross-cut,  or  of  the  party  who  dug  the  hole,  than 
if  he  had  never  happened  to  strike  it.  Although  he  could  have 
followed  up  the  discovery  by  perfecting  title,  his  neglect  so  to 
do  is  equivalent  to  abandonment  of  the  inchoate  right  given  by 
discovery.— Willeford  v.  Bell,  Cal.  Unrep.  679, 49  P.  6. 

The  Discovery  Need  Not  Show  Pay  Ore. 

It  is  sufficient  that  it  disclose  such  a  crevice  as  a  miner  would 
be  willing  to  further  open  and  follow. — McShane  v.  Kenkle,  18 


DISCOVEEY  AND  LOCATION.  31 

Mont.  208,  56  Am.  St.  Rep.  578,  33  L.  E.  A.  851,  44  P.  979; 
Shreve  v.  Copper  Bell  Co.,  11  Mont.  309,  28  P.  315 ;  Muldrick  v. 
Brown,  37  Or.  185,  61  P.  428 ;  Fox  v.  Myers,  29  Nev.  169,  86  P. 
793.  It  need  not  show  ore  in  commercial  quantities. — 43 
L.  D.  79. 

Proof  that  there  were  "seams  of  mineral"  without  stating 
what  the  mineral  was,  is  too  vague  to  amount  to  proof  that 
"valuable  mineral"  was  discovered  on  the  claim. — Harper  v. 
Hill,  159  Cal.  250, 113  P.  162. 

Comparative  Size  or  Value. 

If  there  is  once  found  a  lode  such  as  is  conceded  to  be  one 
upon  which  a  prospector  may  lawfully  locate,  and  he  has  inade 
such  a  discovery  as  justifies  a  location  upon  it,  it  makes  no 
difference  what  its  size  or  value  as  compared  to  the  size  or 
value  of  other  reins  asserting  hostile  title  against  such  loca- 
tion.—Book  v.  Justice  Co.,  58  F.  106, 125, 17  M.  E.  617. 

Proof  of  Mineral  Contents. 

The  discovery  must  be  of  a  mineral  bearing  vein  or  deposit. 
The  proof  of  mineral  value  does  not  require  an  assay,  although 
an  assay  if  taken  is  of  material  value  as  evidence. — Healey  v. 
Rupp,  28  Colo.  102,  63  P.  319,  21  M.  E.  117. 

What  is  quartz  or  mineral  bearing  rock  is  determinable  by 
the  eye  in  most  cases  and  such  ores  as  galena,  zink-blende,  cop- 
per pyrites  and  many  others  necessarily  indicate  mineral  con- 
tents. There  are,  however,  varieties  of  ochre  and  other  dis- 
colored earth  and  rock  which  may  or  may  not  carry  any  kind 
of  valuable  mineral,  in  which  instances  an  assay  or  other  test 
in  common  reason  should  be  required. 

Proof  of  discovery  may  be  aided  by  proof  of  the  geology  of 
adjoining  claims.  — Cascaden  v.  Bortolis,  162  F.  267,  89 
C.  C.  A.  247, 15  Ann.  Gas.  625. 

Lode  Found  Outside  of  Discovery  Shaft. 

It  has  been  decided  in  some  of  the  states  that  although  no 
lode  was  found  in  the  discovery  shaft,  its  disclosure  elsewhere 


32  DISCOVERY  AND  LOCATION. 

within  the  claim  before  any  adverse  rights  had  accrued  would 
validate  the  claim. — Harrington  v.  Chambers,  3  Utah  94,  1  P. 
362;  affirmed  Chambers  v.  Harrington,  111  U.  S.  350,  28  L.  Ed. 
452,  4  Sup.  Ct.  428 ;  North  Noonday  Co.  v.  Orient  Co.,  9  M.  R. 
529,  1  F.  522,  6  Sawy.  299 ;  Tonopah  Co.  v.  Tonopah  Co.,  125 
F.  408.  But  to  the  contrary,  in  Colorado  under  its  statutes 
is  the  case  of  Van  Zandt  v.  Argentine  Co.,  8  F.  725,  4  M.  R. 
441,  2  McCr.  159;  Terrible  Co.  v.  Argentine  Co.,  89  F.  583; 
affirmed  Argentine  Min.  Co.  v.  Terrible  Min.  Co.,  122  U.  S. 
478,  30  L.  Ed.  1140,  7  Sup.  Ct.  1356, 17  M.  R.  109.  And  if  it  be 
true  that  the  sinking  of  the  discovery  within  patented  lines  or 
the  patenting  of  the  discovery  shaft  by  a  hostile  claim  invali- 
dates the  entire  claim,  and  if  the  discovery  shaft  be,  as  it  is, 
the  point  from  which  both  length  and  width  of  the  claim  are 
determined,  the  point  at  which  the  notice  is  to  be  posted,  and 
where  it  is  required  in  terms  by  the  language  of  the  statute  to 
show  a  well  defined  crevice,  and  the  lode  in  place — it  seems 
inconsistent  to  hold  that  discovery  elsewhere 'would  be  of  any 
avail  when  there  was  none  in  the  discovery  shaft. 

This  question  has  been  decided  in  terms  by  the  Supreme 
Court  of  Colorado;  that  a  lode  must  be  disclosed  in  the  dis- 
covery shaft. — McMillen  v.  Ferrum  Co.,  32  Colo.  38,  105  Am. 
St.  Rep.  64,  74  P.  461 ;  Beats  v.  Cone,  20  M.  R.  591,  27  Colo. 
473,  83  Am.  St.  Rep.  92,  62  P.  948. 

In  a  Montana  holding,  based  strictly  on  the  construction  of 
the  statute  in  that  State,  it  was  ruled  that  the  discovery  shaft 
need  not  necessarily  show  the  vein,  provided  it  was  disclosed 
elsewhere  on  the  claim. — O'Donnell  v.  Glenn,  8  Mont.  248,  19 
P.  302. 

By  Relocation  Upon  the  Shaft  Showing  the  Mineral  After- 
ward discovered,  this  danger  can  be  avoided  where  no  hostile 
discovery  has  intervened.  But  a  new  record  based  on  a  new 
discovery  is  an  abandonment  of  the  original  location. — Beals 
v.  Cone,  supra. 


DISCOVERY  AND  LOCATION.  33 

The  Point  at  Which  a  Lode  Is  Discovered  Is  Not  Material. 

It  may  be  discovered  at  the  surface  where  it  outcrops  above  all 
surrounding  country  rock  (Score  v.  Griffin,  9  Ariz.  295,  80  P. 
331)  ;  or  under  the  slide  near  the  surface  at  its  true  apex,  by 
shaft,  open-cut  or  boom  ditch;  or  at  a  greater  depth  by  a 
tunnel  cutting  the  vein  horizontally  across  its  dip,  or  by  a 
shaft  striking  it  perpendicularly  upon  the  incline. 

The  Discovery  Shaft  Need  Not  Be  Sunk  at  the  Point  Where 

the  lode  was  first  actually  discovered.  The  prospector  has 
the  right  to  choose  a  more  convenient  spot  from  which  to 
base  and  outline  his  claim. — Harrington  v.  Chambers,  3  Utah 
94,  1  P.  362  j  Butte  etc.  Co.  v.  Eadrnilovich,  39  Mont.  157,  101 
P.  1078. 

All  Methods  of  Discovery,  Whether  \>y  Shaft,  Cut,  Tunnel, 

boom  ditch  or  otherwise,  are  recognized  by  the  statutes  or  dis- 
trict regulations  everywhere,  the  only  distinction  being,  where 
a  discovery  of  a  certain  depth  and  showing  certain  things  is 
required,  that  when  discovered  at  the  surface  or  in  the  slide 
there  must  be  a  shaft  at  least  ten  feet  deep,  or  deeper  if 
necessary,  to  show  a  well  defined  crevice;  while  if  disclosed 
in  a  cross-cut  or  tunnel,  the  vein  must  be  cut  and  a  well  defined 
crevice  exposed,  at  least  ten  feet  below  the  surface. 

Discovery  by  Prospecting  Drill. 

The  discovery  of  a  lode  or  deposit  by  either  horizontal  or 
vertical  drilling  would  doubtless  fulfill  all  the  conditions  of  a 
legal  discovery,  and  would  operate  to  give  the  party  the  time 
allowed  to  complete  a  discovery  shaft ;  but  the  idea  that  a  drill- 
hole would  be  considered  as  the  equivalent  of  a  discovery 
shaft  can  not  be  entertained.  It  would  be  a  physical  impossi- 
bility for  such  a  drill-hole  to  show  a  well  defined  crevice,  and 
a  drill-hole  is  neither  a  shaft,  cut  nor  other  opening  such  as 
are  enumerated  among  those  things  which  may  constitute  a 


34  DISCOVERY  AND  LOCATION. 

discovery  shaft  or  cut.  The  discovery  of  a  lode  is  a  matter  of 
interest  to  the  prospector  only;  but  if  he  intends  to  appropri- 
ate the  same  it  must  be  by  such  physical  workings  as  shall 
amount  to  notice  to  third  parties.  A  drill-hole  is  not  a  notori- 
ous, physical  land  mark,  and  could  not  be  construed  as  such 
notice. 

Discovery  Holds  How  Long? 

A  discovery  in  Colorado,  Wyoming,  North  and  South 
Dakota,  Montana  and  Oregon  holds  the  claim  for  sixty  days 
allotted  to  sink  the  discovery  shaft. — Marsliall  v.  Harney  Peak 
Co.,  1  S.  D.  350,  47  N.  W.  290.  Alaska,  Arizona,  New  Mexico 
and  "Washington  allow  ninety  days.  Idaho  allows  sixty  days, 
but  claim  must  be  staked  within  ten  days  after  discovery. 
Nevada  allows  ninety  days  from  date  of  posting  location  notice, 
but  requires  the  monuments  to  be  placed  within  twenty  days 
from  date  of  posting. 

Where  no  specific  time  is  limited,  what  is  denominated  a 
reasonable  time  is  allowed  in  which  to  complete  the  location. 
What  is  a  reasonable  time  depends  upon  circumstances,  but 
it  is  not  to  be  stretched  indefinitely.  In  Patterson  v.  HitcJi- 
cock,  5  M.  E.  542,  3  Colo.  533,  it  was  ruled  that  ninety  days 
to  sink  a  shaft  was  more  than  a  reasonable  time.  In  Doe  v. 
Waterloo  Co.,  55  F.  11,  12,  a  prospector  completed  his  staking 
in  twenty  days,  and  he  was  held  to  be  in  good  time. 

In  a  New  Mexico  case  this  language  is  used :  ' '  The  locator 
is  entitled  to  no  appreciable  time  after  discovery  to  determine 
whether  he  desires  to  locate  and  claim  the  benefit  of  his  dis- 
covery. Discovery  and  posting  notice  of  claim,  therefore,  must 
be  practically  cotemporaneous. " — Deeney  v.  Mineral  Co.,  11 
N.  M.  279,  67  P.  725,  22  M.  R.  47. 

If  by  discovery  is  meant  mere  ocular  perception  of  an  out- 
crop visible  to  all,  it  may  be  true,  but  everywhere  else,  where 
the  discovery  is  the  result  of  the  labor  of  the  prospector,  he 
has,  without  doing  any  further  act,  a  reasonable,  or  the 
statutory  time,  to  perfect  the  location. 


DISCOVEKY  AND  LOCATION.  35 

Notice  Without  Discovery. 

A  notice  with  no  discovery  to  justify  is  of  no  avail. — Gemmell 
v.  Swain,  28  Mont.  331,  98  Am.  St.  Rep.  570,  22  M.  R.  716,  72 
P.  662;  McPherson  v.  Julius,  17  S.  D.  98,  95  N.  W.  428.  And 
a  notice  not  followed  by  staking  does  not  make  a  location. — 
Malecek  v.  Tinsley,  73  Ark.  610,  85  S.  W.  81. 

Renewing  Notice. 

It  seems  useless  to  add  that  if  the  discovery  shaft  is  not 
completed  within  the  legal  time  it  is  mere  folly  to  pull  down 
the  old  notice  and  put  up  another  of  a  later  date.  The  sixty 
days  or  other  statutory  period,  or  the  reasonable  time,  begin 
to  run  from  the  date  of  discovery,  and  no  self-serving  act  of 
the  prospector  can  enlarge  the  time.  It  is  often  attempted  to 
evade  this  point  and  secure  further  time  by  posting  a  new 
notice  with  some  other  person  named  as  discoverer. — Ingemar- 
son  v.  Coffey,  41  Colo.  407,  92  P.  908. 

Although  the  notice  has  been  posted  and  reposted  several 
times,  if  the  location  is  ultimately  completed  before  any  third 
party  comes  on  the  ground,  the  claim  is  valid. — Eureka  Co.  v. 
Tom  Moore  Co.,  52  Colo.  623, 123  P.  655. 

Location. 

The  location  of  a  lode  consists  in  denning  its  position  and 
boundaries,  and  in  doing  such  acts  as  indicate  and  publish 
the  intention  to  occupy  and  hold  it  under  the  license  of  the 
United  States. 

The  formal  parts  of  location  include: 

1.  The  location  notice  at  discovery. 

2.  The  discovery  shaft. 

3.  The  boundary  stakes. 

The  Location  Stake. 

The  words  "location  notice,"  or  "notice  of  location"  require 
explanation.  A  location  notice  was  in  early  stakings  the  prin- 
cipal and  often  the  only  specific  act  of  location ;  it  was  a  uni- 


36  DISCOVERY  AND  LOCATION. 

versal  custom  before  any  statutes  existed  purporting  to  regu- 
late the  subject. 

It  is  now  everywhere  required  by  district  rule  or  statute, 
but  the  states  have  divided  themselves  very  evenly  into  two 
classes,  (1)  where  they  make  it  a  mere  memorandum  notice; 
(2)  where  they  make  it  equivalent  to  the  location  certificate 
and  require  a  duplicate  or  substantial  copy  of  it  to  be  recorded 
afterward. 

In  Colorado,  Montana,  Nevada,  North  and  South  Dakota, 
Washington  and  Wyoming  it  is  a  memorandum  notice  con- 
taining the  name  of  the  lode,  the  name  of  the  locator,  and  the 
date  of  discovery ;  where  any  additional  item  is  required  it  will 
be  found  under  "STATUTORY  REQUIREMENTS, "  p.  68. 

California,  Idaho,  Oregon,  Utah,  Arizona  and  New  Mexico 
require  it  to  contain  a  full  description  and  later  a  duplicate 
or  substantial  copy  must  appear  of  record.  As  the  record 
must  show  the  date  of  location  and  there  can  not  be  a  date 
before  there  is  a  location,  this  makes  the  date  of  posting  the 
date  of  the  location  in  those  States. 

How  Posted. 

Where  only  a  memorandum  notice  is  required  the  Statute 
or  rule  generally  requires  "a  plain  sign  or  notice,"  but  there 
has  never  been  any  uniformity  among  prospectors  in  the 
details  of  the  notice,  or  in  the  mode  of  posting  it.  It  may  be 
substantially  complied  with  by  writing  on  a  blazed  tree  or  on 
a  board  nailed  at  discovery,  or  by  legible  carving,  or  by  any 
other  rude  but  honest  form  of  notice,  so  that  it  be  intelligible 
and  open  to  observation;  but  the  loose  practice  of  writing  on 
a  chip  or  stick  thrown  into  the  discovery  hole  is  an  attempt  to 
evade  or  abuse  the  fair  requirement  of  the  law.  In  Gird  v. 
California  Oil  Co.,  60  F.  531,  18  M.  R.  45,  the  notice  was 
placed  in  a  tin  can  on  a  mound  of  stones  and  it  was  ruled  a 
proper  posting.  Writing  on  paper  held  in  place  by  a  rock  is 
sufficient— Emerson  v.  Akin,  26  Colo.  App.  40, 140  P.  481. 


DISCO VEBY  AND  LOCATION.  37 

Place  of  Posting. 

The  location  notice  must  be  posted  at  the  point  of  discovery, 
and  where  the  discoverer  placed  his  notice  at  a  point  where 
the  vein  was  not  disclosed  but  later  posted  it  at  the  proper 
place  the  latter  posting  was  not  good  to  cut  out  an  intervening 
claimant.— Butte  etc.  Co.  v.  Radmilovich,  39  Mont.  157,  101  P. 
1079. 

The  notice  was  posted  and  a  similar  notice  was  recorded, 
when  it  was  found  that  the  posted  notice  was  outside  the 
claim;  a  new  notice  was  then  posted  and  it  was  held  good. 
The  order  of  posting  and  recording  is  not  material,  and  the 
second  notice  did  not  need  to  be  recorded. — Green  v.  Gavin,  11 
Cal.  App.  506, 105  P.  761 ;  McCleary  v.  Broaddus,  14  Cal.  App. 
60,  111  P.  125. 

In  Upton  v.  Santa  Rita  Co.,  14  N.  M.  97,  89  P.  275,  the  notice 
had  been  posted  by  mistake  on  the  overlap  of  an  older  claim, 
but  it  was  held  that  it  did  not  invalidate  the  location. 

FORM  OP  NOTICE  ON  STAKE. 

THE  FAMINE  LODE,  discovered  by  Patrick  Corcoran,  February  17, 
1916.  I  claim  750  feet  easterly  and  750  feet  westerly  from  discovery. 

PATRICK  CORCORAN. 

This  form  fully  complies  with  the  law  where  no  more  is 
required  than  in  Colorado  and  would  still  be  sufficient  without 
signing  at  the  foot,  and  without  stating  the  number  or  direc- 
tion of  feet  claimed.  But  it  is  usual  and  always  safe  to  cover 
those  items  and  if  others  are  added,  as  they  often  are,  it  is 
harmless  surplusage. 

Where-  the  full  notice  is  required,  that  is,  where  it  is  to  be 
copied  or  duplicated  into  the  record,  it  is,  of  course,  written 
or  written  and  printed  on  paper. 

Such  notice  holds  the  claim  for  a  reasonable  time  before 
setting  the  boundary  stakes  or  other  work. — Union  Co.  v. 
Leitch,  24  Wash.  585,  85  Am.  St.  Rep.  961,  64  P.  829. 

This  notice  need  not  call  for  monuments  or  ties — that  is 
required  of  the  record  only. — Poujade  v.  Ryan,  21  Nev.  449,  33 
P.  660 ;  Brady  v.  Husly,  21  Nev.  453,  33  P.  801. 


38  DISCOVEEY  AND  LOCATION. 

A  notice  giving  name  of  the  lode,  length,  width  and  direc- 
tion of  claim,  dated  and  signed;  held  a  good  compliance  with 
the  statute  of  Wyoming. — Columbia  Co.  v.  Duchess  Co.,  13 
Wyo.  244,  79  P.  385. 

THE  COSTIGAN  FORM. 

Mr.  Costigan,  in  his  valuable  Hand  Book  of  Mining1  Law, 
gives  the  following  form  as  a  compliance  with  most,  if  not  all, 
the  local  statutes : 

HawTc  Lode. 

We,  the  undersigned,  who  discovered  this  mineral-bearing  lode  June  17, 
1907,  claim  1500  feet  thereof,  750  feet  easterly  and  750  feet  westerly 
from  discovery,  and  three  hundred  feet  on  each  side  of  the  center  of  the 
vein.  The  general  course  of  the  vein  is  east  and  west. 

JOEL  B.  ERHARDT,  4-5. 
THOMAS  CARROLL,  1-5. 

and  cites  Erhardt  v.  Boaro,  113  U.  S.  527,  28  L.  Ed.  1113,  5 
Sup.  Ct.  560,  15  M.  R.  472,  which  sustained  a  much  less  com- 
plete notice. 

Materiality. 

As  to  the  materiality  of  the  notice  the  decisions  of  certain 
States  hold  that  it  is  an  essential  act  of  location. — Strepey  v. 
Stark,  7  Colo.  614,  618,  5  Pac.  Ill,  17  M.  R.  28;  Chcesman  v. 
Shreeve,  40  F.  787,  17  M.  R.  260;  Upton  v.  Santa  Rita  Co.,  14 
N.  M.  96,  89  P.  275. 

On  the  other  hand  there  is  a  line  of  cases  to  the  effect  that 
the  purpose  of  the  location  notice  is  literally  what  the  term 
implies :  that  is,  to  give  notice  that  the  claim  has  been  appro- 
priated and  that  if  the  second  locator  had  actual  notice  of  the 
other  acts  of  location  the  want  of  a  location  stake  or  notice 
or  an  erroneous  call  therein  is  not  material. — Bismarck  Mt. 
Co.  v.  North  Sunbeam  Co.,  14  Ida.  516,  95  P.  14;  Sturtevant 
v.  Vogel,  167  F.  448,  449,  93  C.  C.  A.  84.  And  the  final 
authority  of  the  Federal  Supreme  Court  seems  to  strongly 
uphold  the  latter  contention. — Yosemite  G.  M.  Co.  v.  Emerson, 
208  U.  S.  25,  52  L.  Ed.  374,  28  Sup.  Ct.  196. 


DISCOVERY  AND  LOCATION.  39 

The  location  notice  is  not  required  to  be  recorded. — Me- 
Cleanj  v.  Broaddus,  14  Cal.  App.  60,  111  P.  125.  Its  office  is 
to  give  a  reasonable  time  to  prospect. — Id, 

Eight  to  Swing  Claim. 

In  Sanders  v.  Noble,  22  Mont.  110,  55  P.  1037,  the  Never 
Sweat  discoverers  had  posted  their  notice  claiming  500  feet 
southerly  and  1,000  feet  northerly.  During  the  ninety  days 
allowed  for  filing  location  certificate  other  parties  discovered 
the  Yukon.  They  had  read  the  Never  Sweat  notice  and  pur- 
posely kept  clear  of  its  ground.  The  Court  held  that  the  law 
gave  the  locators  full  ninety  days  to  choose  where  they  would 
ultimately  fix  their  corners;  that  the  Never  Sweat  locators 
were  not  estopped  by  their  notice  and  could  swing  their  loca- 
tion nearly  at  right  angles  and  take  in  the  Yukon  ground.  The 
opinion  contains  a  full  review  of  previous  cases,  but  does  not 
meet  the  proposition:  that  while  the  prospector  may  have 
such  full  time  for  such  purpose  he  loses  it  the  moment  he  by 
a  positive  act  limits  the  general  area  which  his  monuments 
when  set  will  include.  We  can  not  for  a  moment  believe  that 
a  prospector  after  posting  notice  claiming  750  feet  easterly 
and  750  feet  westerly,  could  dispossess  an  intervening  party 
who  had  sunk  a  hole  800  feet  easterly  from  such  notice.  But 
such  an  instance  is  not  at  all  distinguishable  from  the  decision 
quoted.  See  Wiltsee  v.  King  of  Arizona  M.  Co.,  1  Ariz.  95, 
60  P.  896. 

Discovery  Shaft  Must  Be  on  Public  Domain. 

The  discovery  shaft  must  be  sunk  upon  unoccupied  public 
land;  that  is  to  say,  it  must  be  outside  of  the  lines  of  any 
patent  or  even  of  any  valid  location. — Upton  v.  Larkin,  5 
Mont.  600,  6  P.  66;  Little  Pittsburgh  etc.  Co.  v.  Amie  Co., 
17  F.  57,  5  McCrary  298 ;  Armstrong  v.  Lower,  6  Colo.  393,  15 
M.  R.  631 ;  Golden  T.  Co.  v.  Mahler,  4  M.  R.  390,  4  P.  C.  L.  J. 
405;  Moijle  v.  Bullene,  1  Colo.  App.  308,  44  P.  69;  Watson  y. 
Maijberry,  15  Utah  265,  49  P.  479;  Tuolumne  Co.  v.  Maier, 


40  DISCOVERY  AND  LOCATION. 

134  Cal.  583,  66  P.  863;  Reynolds  v.  Pascoe,  24  Utah  219,  66 
P.  1064;  Peoria  Co.  v.  Turner,  20  Colo.  App.  474,  79  P.  915; 
Tiggeman  v.  Mezlak,  40  Mont.  19,  105  P.  77 ;  El  Paso  Co.  v. 
McKnight,  233  U.  S.  250,  251,  58  L.  Ed.  943,  34  Sup.  Ct.  498, 
L.  R.  A.  1915A,  1113;  Flynn  Co.  v.  Murphy,  18  Ida.  266,  138 
Am.  St.  Rep.  201,  109  P.  851. 

In  the  Larkin-Upton  case,  the  discovery  shaft  was  partly  on 
patented  ground,  but  a  part  of  it  showing  the  vein  or  a  por- 
tion of  the  vein  was  on  clear  ground  and  its  validity  was 
upheld.— 7  Mont.  449,  17  P.  728,  15  M.  R.  404,  144  U.  S.  19, 
36  L.  Ed.  330,  12  Sup.  Ct.  Rep.  614,  17  M.  R.  465;  Nichols  v. 
Williams,  38  Mont.  552, 100  P.  969. 

Plaintiff  in  an  adverse  claim  'suit  must  show  that  his  loca- 
tion was  on  vacant  public  domain. — McWilliams  v.  Winsloiv, 
34  Colo.  341,  82  P.  538. 

The  presence  of  abandoned  cabins,  old  stakes  and  prospect 
holes  are  no  proof  that  the  land  was  not  public  domain. — 
Cook  v.  Elonos,  164  F.  529,  90  C.  C.  A.  403. 

The  defendant  may  show  that  plaintiff's  discovery  was  upon 
land  not  subject  to  location  and  the  claim  therefore  invalid. — 
Girard  v.  Carson,  22  Colo.  345,  44  P.  508,  18  M.  R.  346. 

In  King  Solomon  Co.  v.  Mary  Verna  Co.  the  Court  of 
Appeals  of  Colorado  held  that  a  witness  should  not  be  allowed 
to  state  in  terms  that  the  claim  was  located  on  the  public 
domain,  but  should  state  facts  from  which  the  jury  might  so 
find.— 22  Colo.  App.  528, 127  P.  129. 

Emerson,  who  owned  the  Victor  lode,  placed  his  location 
notice  and  sank  his  discovery  of  the  Recompense  lode  within 
the  lines  of  the  Victor,  an  older  claim  which  he  owned,  stating 
on  the  stand  that  he  had  at  the  time  abandoned  that  part  of 
the  Victor  lode.  Under  this  dangerous  and  suspicious  testi- 
mony he  was  allowed  to  escape  the  consequences  usually  fol- 
Iqwing  the  sinking  of  the  discovery  on  a  prior  location. — 
Emerson  v.  Akin,  26  Colo.  App.  40,  140  P.  481. 


DISCOVEKY  AND  LOCATION.  41 

Location  Must  Be  Good,  When  Made. 

"A  location  to  be  effectual  must  be  good  at  the  time  it  is 
made."— Belk  v.  Meagher,  104  U.  S.  279,  285,  26  L.  Ed.  735, 
738,  1  M.  R.  510.  If  made  on  the  ground  of  a  prior  location, 
and  therefore  initiated  by  trespass,  the  subsequent  abandon- 
ment of  the  prior  claim  does  not  make  the  later  location  good. 
— See  citations  on  page  135. 

Exceptional  Cases — Town  Site — Placer. 

Assuming  that  all  known  lodes  have  been  excepted  from  a 
Town  Site  Patent,  a  discovery  shaft  may  be  sunk  upon  and 
within  the  area  of  its  patent. — Moyle  v.  Bullene,  1  Colo.  App. 
308,  44  P.  69. 

The  exclusion  of  known  lodes  from  placer  patents  is  a  like 
instance  and  has  been  ruled  the  same  way. — Mutchmor  v. 
McCarty,  149  Cal.  603,  87  P.  85. 

Patent  Over  Discovery  Shaft. 

Where  a  party  allows  a  claim  held  by  other  parties  to  go 
to  patent  over  his  discovery  shaft,  "the  loss  of  the  discovery 
is  a  loss  of  the  location." — Gwillim  v.  Donnellan,  115  U.  S.  45, 
29  L.  Ed.  348,  5  Sup.  Ct.  Kep.  1110,  15  M.  R.  482 ;  Miller  v. 
Girard,  3  Colo.  App.  278,  33  P.  69 ;  Girard  v.  Carson,  22  Colo. 
345,  44  P.  508,  18  M.  R.  346. 

Where  a  senior  claimant  allows  a  location  to  be  made  over 
his  discovery  shaft  and  to  go  to  patent,  his  claim  becomes  a 
void  location  not  only  as  to  such  patent,  but  as  to  all  persons 
and  claims. 

In  an  instance  with  special  equities  where  an  agricultural 
patent  was  issued  covering  that  end  of  a  lode  claim  in  which 
all,  or  nearly  all,  the  work  had  been  done  and  where  the  clear 
end  of  the  claim  could  be  practically  reached  only  by  work 
commenced  on  the  patented  end,  the  court  distinguished  the 
case  and  held  that  Gwillim  v.  Donnellan  did  not  apply. — Rich- 
ards v.  Wolfling,  98  Cal.  195,  32  P.  971;  Post  p.  162. 


42  DISCOVERY  AND  LOCATION. 

Bingham  Co.  v.  Vie  Co.  holds  that  where  mineral  had  been 
discovered  elsewhere  on  the  claim  it  was  not  invalidated  by 
loss  of  its  discovery  shaft.  But  the  opinion  admits  that  this 
could  not  hold  good  in  States  like  Colorado,  which  recognize 
no  discovery  outside  of  the  discovery  shaft. — 181  F.  748. 

After  a  claim  has  lost  its  discovery  shaft  by  an  over- 
lapping patent,  a  second  location  on  a  new  discovery  is  a  new 
and  independent  location  which  gives  the  locator  no  rights  as 
against  an  intervening  locator. — Indiana  Co.  v.  Gold  Hills  Co., 
35  Nev.  158,  126  P.  965. 

Sale  of  Discovery  Shaft. 

But  the  sale  of  that  part  of  the  claim  containing  the  dis- 
covery shaft  does  not  invalidate  the  title  of  that  part  which  the 
locator  retains. — Little  Pittsburgh  Co.  v.  Amie  Co.,  17  F.  57,  5 
McCrary  298.  And  in  this  case  the  grantees  had  afterwards 
gone  to  patent  on  the  ground  containing  the  discovery  shaft, 
as  parcel  of  another  claim.  A  distinction  can  readily  be 
drawn  between  this  and  the  Donnellan  case,  supra;  and  yet 
they  are  so  close  that  it  may  be  considered  dangerous  to  con- 
vey that  portion  of  the  lode  containing  the  discovery  without 
proper  covenants  against  patenting  it  as  parcel  of  another 
claim. 

Claim  Must  Include  Discovery  Shaft. 

It  is  self-evident  that  the  claim  must  include  the  discovery 
shaft,  and  proof  that  by  change  of  boundaries  they  were  made 
so  as  to  exclude  the  discovery  shaft  is  admissible  to  defeat  such 
location.— McGinnis  v.  Egbert,  8  Colo.  54,  15  M.  R.  329,  5 
P.  652. 

A  location  of  certain  bounds  upon  a  discovery  shaft  exterior 
to  such  bounds,  upon  a  lode  which  on  its  strike  would  extend 
into  the  lines  staked  off,  is  a  claim  without  a  discovery  and  is 
void.— MicJiael  v.  Mills,  22  Colo.  439,  45  P.  429. 

An  underground  discovery  in  another  claim  aided  by  finding 
quartz  on  surface  of  the  claim  in  controversy  was  held  suffi- 


DISCOVERY  AXD  LOCATION.  43 

rient  to  support  the  location  in  Reiner  v.  Schroder,  146  Cal. 
411,  80  P.  517. 

A  discovery  shaft  through  which  an  end  line  runs  is  on  the 
claim  sufficiently  to  hold  it. — Tiggeman  v.  Mezlak,  40  Mont.  19, 
105  P.  77. 

The  Shaft  Must  Be  Ten  Feet  Deep,  by  Statute  in  All  the 

mining  States  except  California,  North  Dakota  and  Utah.  In 
the  excepted  States  the  discovery  point  may  show  the  lode 
by  a  hole  or  cut  sunk  or  driven  to  or  on  the  vein;  but  if  the 
discovery  notice  is  posted  on  a  naked  outcrop  no  hole  or  cut 
is  necessary  unless  required  by  district  rule,  or  by  statute  as 
in  North  Dakota,  which  requires  a  shaft,  but  does  not  fix 
the  depth. 

By  the  Arizona  Act  of  1909,  eight  feet  depth  is  required. 

By  the  Alaska  Act  of  1915  the  discovery  must  "at  the  time 
of  location  be  denned  upon  the  ground  by  the  removal  of  so 
much  of  the  surface  material  as  may  be  necessary  clearly  to 
expose  to  view  the  discovery  claimed  and  in  such  manner 
as  to  perpetuate  its  identity  and  preserve  it  so  far  as  prac- 
ticable from  obliteration,"  which  is  a  unique  departure  from 
the  legislation  on  this  point  everywhere  else. 

A  State  Statute  requiring  a  specific  depth  of  ten  feet  is  a 
valid  exercise  of  the  right  of  regulation  allowed  to  the  legis- 
lature under  the  Congressional  Act. — Sisson  v.  Sommers,  24 
Nev.  379,  77  Am.  St.  Eep.  815,  19  M.  R.  286,  55  P.  829 ;  Beats 
v.  Cone,  27  Colo.  473,  20  M.  E.  591,  83  Am.  St.  Rep.  92,  62 
P.  948. 

Depth — How  Measured. 

In  those  States  requiring  specific  depth,  the  language  of  the 
statute  requires  the  shaft  to  be  at  least  ten  feet  from  the  lowest 
part  of  the  surrounding  surface.  In  the  instance  of  a  shaft 
started  on  a  steep  slope  there  might  be  two  or  three  feet  of 
difference  between  its  two  ends  or  sides.  In  the  instance  of  a 
shaft  sunk  not  vertical  but  following  a  vein  with  a  heavy 


44  DISCOVERY  AND  LOCATION. 

pitch  it  is  obvious  that  a  slight  difference  would  exist  between 
a  vertical  measurement  and  a  measurement  following  the 
pitch  of  the  shaft,  the  latter  measurement  being  the  shorter 
distance  and  favoring  the  prospector.  And  although  usually 
the  measurement  is  taken  vertically,  yet  in  such  case  we  do 
not  see  but  that  the  measure  following  the  dip  would  strictly 
conform  to  the  law,  unless,  as  in  Montana,  the  statute  mentions 
vertical  depth,  specifically. 

It  is  obvious  that  a  cut  being  equivalent  to  a  shaft  and  the 
pitch  of  the  vein  varying  to  any  degree  between  true  vertical 
and  the  horizontal,  it  is  impossible  to  say  at  what  angle  the  / 
cut  would  be  so  flat  as  to  be  no  longer  in  strictness  a  shaft,  j 
But  a  pit  dug  on  a  blanket  vein  reaching  down  ten  feet  being  { 
a  compliance  with  the  law,  and  no  more  work  being  required  ] 
on  a  blanket  vein  than  on  a  fissure,  the  pit  or  shaft  following  ] 
the  vein  by  measurement  along  the  vein  would  be  a  compliance  " 
with  the  law  without  regard  to  its  relation  to  the  vertical. 

A  cut  made  on  the  outcrop  of  a  vein  in  a  cliff,  12  feet  in 
height  but  only  4%  feet  into  the  cliff,  is  not  any  form  of  a 
10-foot  discovery  shaft  or  cut  allowed  by  Colorado  statute. — • 
Ingemarson  v.  Coffey,  41  Colo.  407,  92  P.  908. 

Precautions  as  to  Depth. 

After  a  shaft  has  been  sunk  ten  feet,  the  ground  at  the  col- 
lar may  cave,  or  the  shaft  may  become  filled  with  debris,  or 
the  making  of  a  platform  or  raised  collar  may  make  it  diffi- 
cult to  ascertain  the  exact  line  of  the  original  rim  of  the  shaft, 
or  to  ascertain  its  original  bottom.  In  view  of  these  facts  and 
of  the  essential  importance  of  the  shaft  being  full  ten  feet 
deep,  it  is  always  advisable  to  sink  it  two  or  three  feet  deeper 
and  remove  all  ground  for  cavil  or  contention. 

Subsequent  Deepening  of  Shaft. 

Where  the  discovery  shaft  has  not  reached  the  legal  depth 
at  time  of  record,  but  has  been  completed  to  that  depth  after- 
wards and  before  any  adverse  rights  have  intervened,  such 


DISCOVERY  AND  LOCATION.  45 

discovery  shaft  is  valid.  This  is  a  matter  of  course  on  the 
general  ruling  as  to  performance  of  the  various  acts  of  loca- 
tion being  sufficient  in  all  instances  where  complete  before 
third  parties  assert  rights,  though  not  completed  within  the 
statutory  period. — McGinnis  v.  Egbert,  8  Colo.  41,  15  M.  R. 
329,  5  P.  652. 

Discovery  Shaft  Must  Show  Well  Denned  Crevice, 

besides  reaching  a  certain  depth. — Cheesman  v.  Shreeve,  40  F. 
787,  17  M.  R.  260.  "Crevice"  means  a  "mineral  bearing 
vein."— Seals  v.  Cone,  27  Colo.  473,  83  Am.  St.  Rep.  92,  20 
M.  R.  591,  62  P.  948. 

If  a  crevice  does  not  show  in  ten  feet,  the  shaft  must  go 
deeper;  if  it  appears  sooner,  the  ten  feet  must  still  be  com- 
pleted. The  crevice  shows  the  lode  discovered,  the  depth 
shows  the  lode  appropriated.  In  the  instance  of  a  thin  flat 
deposit,  a  ten-foot  shaft  might  pass  entirely  through  the  vein, 
but  it  would  still  show  the  crevice  in  its  sides  and  ends. 

It  Need  Not  Contain  Ore  or  Mineral,  But  It  Must  Show 

mineral  bearing  rock — that  is,  the  gangue  or  crevice  material 
of  the  vein.— Copper  Globe  v.  Allmann,  23  Utah  410,  64  P. 
1020,  21  M.  R.  296 ;  and  it  is  error  to  omit  this,  as  one  of  the 
essential  elements  of  a  discovery  shaft  in  an  instruction  pur- 
porting to  define  such  elements. — Bryan  v.  McCaig,  10  Colo. 
309,  15  P.  413.  It  need  not  show  pay  ore. — Muldrick  v. 
Brown,  37  Or.  185,  61  P.  428. 

Discovery  Shaft  Need  Not  Show  Wall. 

It  had  been  decided  in  Montana  (Foote  v.  National  Co.,  2 
Mont.  402,  9  M.  R.  605)  that  at  least  one  wall  of  the  lode  must 
be  disclosed  before  the  vein  can  be  considered  as  discovered. 
But  this  decision  made  the  discovery  dependent  upon  a  single 
incident,  which  is  not  by  any  means  the  only  proof  of  the  ex- 
istence of  a  vein.  This  case,  as  well  as  O'Donnell  v.  Glenn,  8 
Mont.  248,  19  P.  302,  was  based  on  a  requirement  of  the  Mon- 


46  DISCOVERY  AND  LOCATION. 

tana  statute  to  such  effect  (since  repealed),  and  not  upon 
reason  or  the  nature  of  the  subject  matter,  and  has  therefore 
no  pertinency  to  discoveries  made  under  the  regulations  of  an 
entirely  different  statute,  or  in  territory  where  there  is  no 
statutory  regulation  of  the  subject. — Fleming  v.  Daly,  12  Colo. 
App.  439,  55  P.  947.  There  are  certain  classes  of  deposits 
which  are  doubtless  lodes  or  veins  within  the  intent  of  the  Act 
of  Congress,  which  show  no  well  defined  walls  after  thorough 
development,  much  less  within  that  amount  of  working  which 
is  required  as  the  basis  of  a  record. 

Shaft  Through  Slide  or  Country. 

Nor  does  it 'make  any  difference  that  the  shaft  is  started  in 
slide  or  upon  a  stratum  of  country  rock,  if  it  pierce  through 
the  slide  or  country  and  find  a  crevice  at  a  depth  of  ten  feet 
or  more.  Such  a  shaft  fulfills  all  the  statutory  conditions. 
But  it  must  reach  the  lode  in  place;  it  is  not  enough  that 
it  strike  a  mass  of  ore  mixed  with  broken  slide  and  country. — 
Van  Zandt  v.  'Argentine  Co.,  2  McCr.  159,  8  F.  725,  4  M.  R. 
441 ;  Waterloo  Co.  v.  Doe,  56  F.  685. 

Discovery  in  Broken  Ground. 

It  is  a  common  incident  to  find  the  lo(Je  at  surface  with  its 
sides  and  body  more  or  less  shattered,  or  perhaps  with  the 
entire  top  of  the  vein  broken  over  with  the  adjacent  country. 
Such  a  lode  is  nevertheless  in  place.  The  shattering  and  break- 
ing over  are  only  mechanical  accidents  and  no  more  destroy 
the  position  of  the  vein  as  a  thing  in  place  than  a  fault  breaks 
the  legal  continuity  of  a  vein  followed  on  its  strike. — Jones  v. 
Prospect  Co.,  21  Nev.  339,  31  P.  642,  17  M.  R.  530. 

Separate  Discovery  for  Each  Claim. 

The  attempt  to  locate  two  full  claims  upon  one  discovery 
shaft  is  a  palpable  fraud. — 16  L.  D.  1 ;  McKinstry  v.  Clark,  4 
Mont.  370,  1  P.  759 ;  Reynolds  v.  Pascoe,  24  Utah  219,  66  P. 
1064.  It  is  sometimes  alleged  that  two  lodes  cross  in  the  dis- 


DISCOVERY  AND  LOCATTON.  47 

covery  shaft,  but  no  ten-foot  shaft  can  prove  such  fact  if  such 
a  coincidence  ever  occurs,  nor  would  it  alter  the  law  of  the 
case  if  it  did  occur. 

Open  Cut,  Adit  and  Tunnel  Discoveries. 

All  the  mining  States  which  legislate  specifically  on  the  sub- 
ject practically  follow  the  Colorado  Statute  providing  that 
discovery  by  means  of  an  open  cut,  adit,  cross-cut  or  tunnel 
shall  be  equivalent  to  a  shaft.  Where  the  discovery  is  by 
cross-cut  tunnel  or  open  cut,  it  must  show  the  lode  at  a  depth 
of  ten  feet  below  the  surface ;  that  is  to  say,  the  breast  of  the 
cut  or  tunnel  must  be  of  that  depth  at  its  bottom  to  be  the 
equivalent  of  a  ten-foot  discovery  shaft;  but  where  discovery 
is  by  an  adit,  the  Colorado  Supreme  Court  have  ruled  in  two 
cases  that  it  need  not  be  ten  feet  deep,  nor  any  specific  depth, 
at  the  breast,  but  that  the  adit  must  be  ten  feet  in  length  along 
the  vein.— Gray  v.  Truly,  6  Colo.  278;  Electro  Co.  v.  Van 
Auken,  9  Colo.  204,  11  P.  80. 

In  the  latter  case  they  also  held  that  an  adit  need  not  enter 
cover  to  be  an  adit.  The  effect  of  the  latter  decision  is  to 
confuse  all  the  distinctions  between  an  adit  and  an  open  cut, 
so  that  if  the  hole  or  stripping  discloses  ten  feet  in  length 
of  the  vein,  it  may  be  styled  an  adit,  although  in  fact  an  open 
cut.  It  is  not  safe  to  rely  on  this  construction,  and  no  pros- 
pector should  consider  his  discovery  complete  until  he  has 
ten  feet  in  depth  at  the  breast  of  his  cut,  or  a  covered  adit  at 
least  ten  feet  in  along  the  vein. 

The  words  "cross-cut"  and  "tunnel"  are  identical  terms, 
except  that  the  former  is  usually  applied  to  short  workings  and 
the  latter  to  those  of  greater  length. 

In  States  which  have  no  such  statute  the  law  is  the  same  upon 
general  principles.  It  can  make  no  difference  to  the  govern- 
ment nor  to  the  rights  of  other  prospectors  whether  the  dis- 
covery be  by  vertical  or  horizontal  cutting.  Either  mode 
complies  with  both  the  letter  and  spirit  of  the  law. 

Under  the  Nevada  Act  allowing  240  cubic  feet  of  excavation 
to  count  as  a  discovery  cut,  the  removal  of  an  accumulation 


48  DISCOVERY  AND  LOCATION. 

of  caved  down  dirt  in  an  old  abandoned  tunnel  was  hold  to 
count  for  such  excavation. — Murray  v.  Osborne,  33  Nev.  257, 
111  P.  31. 

Duncan  v.  Eagle  Rock  Co.,  48  Colo.  569,  139  Am.  St.  Rep. 
288,  111  P.  588,  593,  treats  the  words  "discovery  shaft"  as  a 
generic  term  including  the  discovery  point  in  any  form  as  used 
in  the  Mining  Statute  of  Colorado,  but  holds  that  where  used 
as  a  call  or  tie  it  has  no  such  generic  meaning  and  that  a  call 
for  a  discovery  "shaft"  is  not  satisfied  by  a  discovery  "cut." 

Secret  Underground  Discovery. 

The  only  class  of  discoveries  which  would  suggest  any  diffi- 
culty is  where,  by  extending  the  works  of  an  old  claim,  a 
drift  or  an  underground  cross-cut  or  other  working  passes 
beyond  the  claim  and  discloses  either  a  new  vein,  or  the  exten- 
sion of  the  old  vein  into  clear  ground.  We  can  not  see  any 
objection  to  locating  such  claim  upon  the  discovery  so  made 
below,  the  notice  being  placed  on  surface  at  the  proper  point 
above  the  underground  discovery  and  referring  to  such  point 
of  discovery. 

In  Little  Gunnell  Co.  v.  Kimler,  Fed.  Cas.  No.  8402,  1 
M.  R.  536,  a  secret  underground  working  from  an  old  claim 
was  not  allowed  to  hold  as  a  valid  basis  for  relocation  of  an 
adjoining  claim,  but  that  decision  was  upon  the  letter  of  the 
Colorado  Statutes  concerning  relocations  which  in  terms 
requires  a  shaft  to  be  sunk  or  other  new  opening  to  be  made, 
nor  had  such  secret  discovery  been  followed  by  proper  surface 
notice. 

In  Butte  Co.  v.  Barker,  35  Mont.  327,  89  P.  302,  90  P.  177, 
defendant  had  run  a  cross-cut  102  feet  long  at  132  feet  depth 
starting  from  a  shaft  on  a  patented  claim  owned  by  a  third 
party,  the  cross-cut  extending  into  new  ground  which  new 
ground  defendant  had  staked  and  marked  on  the  surface  at  a 
point  above  the  discovery.  The  location  was  held  void  under 
the  Montana  Statute,  but  the  reasoning  supporting  the  decision 


DISCOVERY  AND  LOCATION.  49 

is  by  no  means  persuasive.  If  such  cross-cut  were  run  by 
license  of  the  patentee  we  can  not  see  why  it  would  not  make  a 
good  discovery. 

Notice  and  Staking  Upon  Cross-Cut  Discoveries. 

In  the  case  of  cross-cuts  or  tunnels  not  recorded  under  the 
Act  of  Congress,  the  point  on  surface  above  the  discovery 
intended  as  the  center  line  of  the  claim  is  the  point  at  which 
the  location  notice  is  posted,  and  the  stakes  are  placed  to 
embrace  an  area  in  which  this  notice  stands  at  a  point  on  such 
center  line.  The  discovery  in  the  cross-cut  will  of  course  be 
on  the  same  line  carried  down  vertically  unless  an  allowance 
is  made  for  the  dip.  With  the  exception  of  the  point  of  plac- 
ing notice,  no  distinction  exists  in  the  process  of  locating  and 
recording  between  these  cases  and  those  of  surface  discoveries. 

Where  the  discoverer  staked  the  claim  on  the  projection  of 
the  dip  found  in  his  cross-cut  (not  a  statutory  tunnel)  to 
surface,  the  location  was  held  good. — Brewster  v.  Shoemaker, 
28  Colo.  176,  89  Am.  St.  Rep.  188,  53  L.  R.  A.  793,  21  M.  R. 
155,  63  P.  309. 

Discovery  in  Statutory  Tunnel. 

Where  a  lode  is  cut  in  a  tunnel  located  and  recorded  so  as  to 
claim  the  rights  of  a  prospecting  tunnel  under  the  Act  of 
Congress  (Sec.  2323)  we  advise,  where  practical,  a  posting, 
staking  and  recording  of  each  lode  as  it  is  cut,  exactly  as  in  the 
case  of  discovery  in  an  unrecorded  cross-cut.  But  it  has  been 
held  that  such  discovery  in  a  located  tunnel  is  good  and  will 
hold  without  any  staking  on  the  surface  against  a  subsequent 
surface  discovery.— Ellet  v.  Campbell,  18  Colo.  510,  33  P.  521. 
In  the  case  referred  to  a  notice  had  been  posted  at  the  mouth 
of  the  tunnel  and  a  record  had  been  made  reciting  the  dis- 
covery in  the  tunnel  and  claiming  the  proper  length  and 
width,  but  not  giving  surface  boundaries.  This  case  was 
affirmed  in  the  Federal  Supreme  Court,  so  that  the  question 
has  now  received  final  judicial  construction.  The  Court,  how- 


50  DISCOVERY  AND  LOCATION. 

ever,  conceded  that  it  may  be  true,  as  suggested  in  previous 
editions  of  the  Mining  Rights,  that  before  a  patent  can  be 
secured  to  the  lode  there  must  be  a  surface  location. — Campbell 
v.  Ellet,  167  U.  S.  116,  42  L.  Ed.  101,  17  Sup.  Ct.  Rep.  765, 18 
M.  R.  669. 

Staking  Boundaries. 

That  the  staking  of  the  surface  boundaries  of  the  claim  has 
been  required  upon  all  surface  locations  made  since  May  10, 
1872,  has  been  repeatedly  decided. — Gelcich  v.  Moriarty,  53 
Cal.  217,  9  M.  R.  499;  Hauswirth  v.  Butclier,  4  Mont.  299, 
1  P.  714;  Gohres  v.  III.  Co.,  40  Or.  516,  67  P.  666;  Deeneij  v. 
Mineral  Co.,  11  N.  M.  279,  67  P.  724,  22  M.  R,  47.  These 
decisions  are  not  made  upon  local  statutes,  but  as  the  con- 
struction of  R.  S.  Sec.  2324;  nor  can  we  see  how  any  other 
construction  can  be  contended  for.  It  follows,  therefore,  that 
since  May  10,  1872,  surface  staking  along  the  bounds  of  the 
claim  has  been  required  in  all  cases,  without  regard  to  State, 
Territorial  or  District  legislation  requiring  such  staking.  Such 
legislation,  when  it  existed,  has  been  to  direct  the  details  of 
the  staking,  but  a  sufficient  staking  has  been  required  under 
the  Act  of  Congress  whether  the  local  rule  has  been  silent  or 
outspoken  on  this  point.  The  Martin  White  case,  below  quoted, 
is  to  the  same  effect  and  gives  a  full  review  of  the  different 
modes  of  location  on  the  Pacific  Slope. 

It  may  be  true  in  instances  that  hardship  results  under  this 
provision;  but  it  is  better  for  a  party  to  lose  a  portion  of 
his  vein  by  its  departure  from  its  staked  lines,  than  that  he 
be  allowed  to  leave  his  vein  and  its  course  undetermined  until 
a  rich  discovery  in  the  vicinity  suggest  the  time  arrived  to 
"prove  up"  and  take  his  neighbor's  lode.  This  is  not  a  forced 
illustration — it  is  the  very  evil  which  the  law  is  intended  to 
prevent. — Gleeson  v.  Martin  White  Co.,  13  Nev.  442,  9  M.  R. 
429 ;  Gonu  v.  Russell,  3  Mont.  358,  12  M.  R.  630 :  Gil  pin  Co. 
v.  Drake,  8  Colo.  586,  9  P.  787;  Sweet  v.  Webber,  1  Colo. 
443,  4  P.  752. 


DISCOVERY  AND  LOCATION.  51 

Posting  the  discovery  notice  is  not  the  equivalent  of  marking 
the  surface  boundaries. — Doe  v.  Waterloo  Co.,  70  F.  456,  17 
C.  C.  A.  190,  18  M.  E.  255. 

Compromise  Boundary. 

Long  acquiescence  in  a  compromise  boundary  line  will,  estop 
the  parties  to  dispute  it. — Montana  Co.  v.  St.  Louis  Co.,  183 
F.  51,  105  C.  C.  A.  343. 

Overlap  on  Prior  Claims. 

The  setting  of  stakes  on  prior  locations  or  patents  has  been 
held  valid.  Such  surveys  are  sustained  with  the  reservation 
that  such  technical  trespass  is  accomplished  without  breach  of 
the  peace. —  Del  Monte  Co.  v.  Last  Chance  Co.,  171  U.  S.  55, 
43  L.  Ed.  72,  18  Sup.  Ct.  Rep.  895 ;  Bunker  Hill  Co.  v.  Empire 
State  Co.,  109  F.  538,  48  C.  C.  A.  665;  Davis  v.  Shepherd, 
31  Colo.  141,  72  P.  57,  22  M.  R.  575,  30  L.  D.  420,  31  L.  D.  121. 
See  Clark  v.  Mitchell,  35  Nev.  447, 130  P.  760, 134  P.  449. 

But  the  overlap  belongs,  of  course,  to  the  prior  claim,  and 
doing  the  location  work  upon  a  prior  subsisting  claim  which 
has  kept  up  its  annual  labor  initiates  no  title  at  all  in  the  new 
location. — Anderson  v.  Caughey,  3  Cal.  App.  22,  84  P.  223; 
Hoban  v.  Boyer,  37  Colo.  185,  85  P.  837. 

Where  by  mistake  the  location  notice  was  posted  on  the 
overlap  it  was  held  that  this  did  not  avoid  the  location. — 
Upton  v.  Santa  Rita  M.  Co.,  14  N.  M.  96,  89  P.  275. 

Fractional  Claims. 

"Where  the  surrounding  ground  has  been  taken  up  so  that 
only  a  fraction  remains  to  be  located,  perhaps  three  cornered 
or  otherwise  irregular  in  shape,  while  a  location  conforming 
itself  to  the  lines  of  the  vacant  area  would  be  good  for  the 
ground  covered  and  for  everything  enclosed  by  its  vertical 
planes  (Crown  Point  Co.  v.  Buck,  97  F.  462.  38  C.  C.  A.  "27S). 


52  DISCOVERY  AND  LOCATION. 

it  is  advisable  to  take  up  such  vacant  area  as  a  parallelogram 
with  parallel  end  lines  so  as  to  secure  extralateral  rights  which 
would  otherwise  be  lost.  The  fact  that  some  or  all  the  corners 
in  such  case  would  be  on  foreign  ground  would  not  invalidate. 
—McElligott  v.  Krogh,  151  Cal.  126,  90  P.  823. 

The  Locator  Owns  Only  What  His  Lines  Enclose, 

although  not  chargeable  with  fault  in  making  them.   It  is  bet- 
ter for  him  to  lose  part  of  the  lode  than  to  make  title  depen- 
dent on  the  result  of  developments  made  after  lines  have  been  / 
chosen.— Iron  Silver  Co.  v.  Elgin  Co.,  118  U.  S.  196,  15  M.  R.  I 
641,  30  L.  Ed.  98,  6  Sup.  Ct>.  Rep.  1177. 

I* 
Three  Months  to  Complete  Staking  Is  the  Time  Allowed 

j 

by  implication  from  the  Colorado  Statute.  The  discoverer  has 
sixty  days  to  complete  his  discovery  shaft  and  three  months 
to  record.  If  his  staking  is  completed  at  any  time  within 
three  months,  that  is,  within  the  period  allowed  between  the 
date  of  discovery  and  when  the-  record  must  be  made,  it  is 
in  apt  time.  He  is  allowed  less  time  to  sink  his  discovery 
than  to  set  his  stakes,  because  he  may  know,  as  soon  as  his 
vein  is  disclosed,  where  to  sink;  but  he  can  not  so  readily 
know  the  course  of  the  vein,  and  consequently  needs  time  for 
this  part  of  the  location,  inasmuch  as,  his  stakes  once  set,  he 
covers  no  more  of  his  vein  than  lies  within  them. — Erhardt  v. 
Boaro,  113  U.  S.  527,  15  M.  R.  472,  28  L.  Ed.  1113,  5  Sup.  Ct. 
Rep.  560. 

If  the  setting  of  his  stakes  is  delayed  beyond  the  period  of 
three  months,  the  location  is  not  invalidated  where  no  adverse 
rights  have  intervened. — McGinnis  v.  Egbert,  8  Colo.  41,  15 
M.  R.  329,  5  P.  652;  Crown  Point  Co.  v.  Crismon,  39  Or.  364, 
65  P.  87. 

The  Statute  allows  a  specific  length  of  time  to  the  locator  to 
learn  in  what  direction  to  stake  his  claim. — Street  v.  Delta  M. 
Co.,  42  Mont.  371,  112  P.  701. 


DISCOVEEY  AND  LOCATION.  53 

When  the  time  to  complete  staking  is  not  fixed  by  statute 
or  district  rule,  a  reasonable  time  is  allowed.  Twenty  days 
has  been  held  to  be  a  reasonable  time. — Doe  v.  Waterloo  C6.t 
70  F.  456,  17  C.  C.  A.  190,  18  M.  R.  255. 

All  Statutes  Limiting  Time  to  Perfect  Location 

and  record  are  directory  where  there  is  but  a  single  claimant, 
or  but  one  set  of  claimants,  and  delay  becomes  material  only 
where  the  rights  of  third  parties  have  intervened. — Healey  v. 
Rupp,  37  Colo.  25,  86  P.  1015 ;  Columbia  Co.  v.  Duchess  Co., 
13  Wyo.  244,  79  P.  385. 

The  Diagram  of  a  Lode  Correctly  Located, 

under  the  present  Colorado  law  (1874-1916),  will  show  sub- 
stantially  as  follows: 

Post  Post  Post 

o — —  o  — 


Discovery  Shaft  ••  Location  Slake 


Post  Post 

ELEMENTS  OF  LOCATION. 


1st.    Discovery  Shaft  at  Least  Ten  Feet  Deep 

from  the  lowest  part  of  the  rim  at  the  surface,  and  showing 
a  well-defined  crevice. 


2d.    Location  Stake;  a  Plain  Sign  or  Notice 

containing  the  name  of  the  lode,  the  name  of  the  locator,  and 
the  date  of  discovery. 

3d.     Center  Stakes  ;  Two  Substantial  Side  Posts 

sunk  in  the  ground  and  hewed  or  marked  'on  the  side  which 
is  in  toward  the  claim.    These  side  posts  must  be  sunk  in  the 


54  DISCOVERY  AND  LOCATION. 

center  of  each  side  line;  that  is,  in  a  1,500  foot  claim,  750 
feet  from  each  end  line. 


4th.    Comer  Stakes;  Four  Substantial  Posts, 

one  at  each  corner  of  the  claim,  sunk  in  the  ground  and 
hewed  or  marked  on  the  two  sides  which  are  in  toward  the 
claim. 


5th.    Extra  Angles. 

It  is  the  invariable  custom  where  there  are  angles  in  the 
side  line,  to  place  a  stake,  hewed  on  the  side  in  toward  the 
claim,  at  each  angle. 

For  number,  position  and  marking  of  stakes  in  the  several 
States,  see  STATUTORY  REQUIREMENTS,  page  68. 

Must  Cover  Apex. 

The  stakes  of  the  location  must  include  the  apex  of  the  vein, 
and  in  so  far  as  they  fail  so  to  do  the  claim  is  defective  to 
that  extent.  That  is  to  say :  the  theory  of  the  statute  is  that 
a  normal  location  will  cover  the  apex  of  a  vein  and  have  the 
right  to  follow  the  vein  on  the  dip.  If  the  location  fail  to 
cover  the  apex  and  the  lode  dips  away  from  the  claim,  so 
much  of  the  vein  is  clearly  lost;  if  after  losing  the  apex  the 
location  is  laid  so  as  to  cover  the  vein  on  its  pitch  underneath 
the  side  lines  as  it  dips  back  into  or  under  the  side  lines,  it  is 
still  lost  to  the  locator  and  is  held  to  belong  to  such  outside 
claim  as  may  cover  the  apex  beyond  the  point  of  departure. 
See  page  212. 

Locating  Without  Aid  of  Surveyor. 

In  locating  any  class  of  claim,  a  survey  is  always  advisable. 

If  the  prospector,  however,  can  not  procure  a  professional 

surveyor  (and  it  is  often  impracticable),  a  reasonable  degree 


DISCOVERY  AND  LOCATION.  55 

of  care  will  suffice  to  locate  his  boundaries  with  certainty 
sufficient  to  make  the  subsequent  record  valid. 

The  record  is  merely  a  description  of  the  claim  as  staked 
on  the  ground;  if  not  properly  staked  the  record  does  not 
make  a  good  location,  but  if  the  location  has  been  properly 
made,  the  record  can  readily  be  made  to  describe  it  fully, 
whether  such  location  has  been  made  by  a  surveyor  or  other- 
wise. 

The  discovery  shaft  being  taken  as  the  center  of  the  claim 
and  the  initial  point  of  location,  a  tape  measurement  from 
its  center  300*  ieet  at  right  angles  to  the  lode  reaches  to  the 
point  where  a  center  stake  must  be  set;  return  to  discovery 
shaft  and  continue  the  same  line  on  the  other  side  the  same 
direction  and  set  the  second  center  or  side  stake;  at  right 
angles  to  this  line  and  across  the  center  .of  discovery  shaft 
run  a  line  750  feet  each  way  along  the  supposed  course  of 
the  lode.  This  gives  the  center  line  lengthwise  of  the  claim, 
and  from  each  end  of  this  center  line  measure  300  feet  on 
each  side  for  the  end  lines  on  the  same  course  as  the  line 
between  the  center  stakes,  which  will  give  the  four  points 
at  which  to  set  the  corner  stakes,  and  will  also  make  the  end 
lines  parallel  as  required  by  law. 

Measuring  the  length  of  the  claim  along  its  center,  with 
an  offset  of  300  feet  at  right  angles  in  each  direction  at 
discovery  shaft  and  at  each  end,  brings  the  same  result 
as  if  both  the  side  lines  as  well  as  the  end  lines  were  measured. 

Diagram  of  Lines  to  Be  Run. 

The  dotted  lines  on  the  following  diagram  show  the  four 


•Three  hundred  feet  in  Alaska  and  all  States  except  North  Dakota; 
150  feet  in  North  Dakota;  150  feet  in  Clear  Creek,  Gilpin,  Boulder 
and  Summit  Counties,  Colorado,  and  300  feet  in  all  other  counties.  This 
300  or  150  feet  is,  of  course,  one-half  the  width  of  a  600  or  300  foot 
wide  claim. 


56  DISCOVERY  AND  LOCATION. 

lines  to  be  measured  on  a  prospector's  survey,  and  the  six 
points  at  which  stakes  are  to  be  set : 

Comer  Center  State  Corner 

o  .  o 


Shaft "" 
Comer  Cen  &?  Stake  Corner 


Staking  and  Marks  on  Stakes. 

At  each  of  the  four  real  corners  of  the  claim,  at  the  center 
of  each  side  line  and  at  each  extra  angle  made  in  the  claim, 
set  a  substantial  stake,  blaze  it  and  mark  the  blazed  part  with 
its  proper  number  and  the  name  of  the  lode.  In  addition  to 
the  number  write  "North  center  side  stake,"  "South  center 
side  stake,"  "N.  E.  Cor.,"  etc.,  as  the  case  may  be,  and  put 
the  name  of  the  lode  on  each  stake. 

The  Statute  of  Colorado  requires  each  stake  to  be  hewed 
or  marked  on  the  side  or  sides  in  toward  the  claim.  This 
would  be  satisfied  by  blazing  alone,  but  it  is  customary  to 
shave  the  in  side  (which  indicates  the  relation  of  the  stake 
to  the  claim)  and  mark  with  pencil  the  name  of  the  lode, 
number  of  corner,  etc.,  as  above  directed. 

Marking  three  out  of  four  corners  was  held  sufficient  in  a 
Utah  case.— Warnock  v.  DeWitt,  11  Utah  324,  40  P.  205.  Ke- 
view  of  citations  on  the  point  of  sufficient  staking. — Howeth  v. 
Sullenger,  113  Cal.  547,  45  P.  841. 

Where  not  required  by  statute  it  is  not  essential  to  put  the 
name  of  the  claim  on  the  boundary  stakes. — Smith  v.  Newell, 
S6  F.  56;  Bingham  Co.  v.  Ute  Co.,  181  F.  748. 

Numbering  the  Corners. 

Any  corner  may  be  called  No.  1 ;  call  the  other  corner  on 
the  same  end  line  No.  2,  and  proceed  thus  continuously  around 
the  claim,  setting  an  additional  corner  post  at  each  angle 


DISCOVEKY  AND  LOCATION.  57 

of  the  claim.    Except  in  official  surveys  there  is  no  uniform 
rule  as  to  which  corner  is  numbered  one.    Rule  138. 

Position  of  Center  Stakes. 

In  the  case  of  the  Hardin  Lode,  the  claim  was  surveyed  600 
feet  in  one  direction  and  900  feet  in  the  opposite  direction 
from  center  of  discovery.  The  center  stakes  were  placed 
opposite  discovery,  which  left  them  each  150  feet  from  their 
proper  places.  The  Supreme  Court  held  that  they  could  not 
be  considered  as  substantially  in  the  center ;  but  on  the  other 
hand,  held  that  if  the  corner  posts  were  properly  on  the 
ground,  the  absence  of  center  stakes  did  not  invalidate  the 
location.— Pollard  v.  Shively,  5  Colo.  309,  2  M.  R.  229. 

Tying  the  Claim. 

In  addition  to  staking  the  boundaries  it  is  essential  to  have 
sufficient  ties  by  which  to  identify  the  claim  in  the  location 
certificate.  The  use  of  the  bearings  to  mountain  peaks  used 
by  surveyors  with  instruments  is  impracticable  in  this  kind 
of  survey — take,  instead  of  such  monuments,  marks  carved 
on  prominent  boulders  or  prominent  blazed  trees,  neighboring 
shafts  or  shaft-houses.  Anything  which  is  a  "natural  object" 
or  "permanent  monument"  (and  reasonably  substantial  and 
prominent)  is  sufficient  to  identify  the  claim.  From  the  center 
of  the  discovery  and  from  at  least  one  of  the  corner  posts,  take 
careful  measurements  of  the  exact  distance  to  such  monu- 
ments (the  most  prominent  possible  under  the  circumstances) 
as  have  been  selected  to  use  in  the  location  certificate  to 
tie,  describe  or  identify  the  claim. 

No  specific  number  of  ties  are  required,  but  at  least  two 
different  monuments  should  be  selected  for  such  purpose. 

What  Are  Sufficient  Ties. 

A  tree  blazed  or  otherwise  referred  to  by  some  peculiarity 
as  in  Quimby  v.  Boyd,  8  Colo.  194,  6  P.  462,  "a  double  spruce 
tree,"  has  been  declared  a  sufficient  monument.  In  certain 


58  DISCOVERY  AND  LOCATION. 

places  trees  might  be  the  only  objects  available,  and  have  been 
considered  good  boundary  monuments  or  witnesses  from  time 
immemorial.  A  neighboring  shaft  or  a  prominent  post  firmly 
fixed  in  the  ground  is  a  good  monument. — Jupiter  Co.  v.  Bodie 
Co.,  11  F.  666,  7  Sawy.  196,  4  M.  R.  412.  Mountain  peaks  are 
good  calls.— Craig  v.  Thompson,  10  Colo.  517,  16  P.  24. 

A  tie  to  a  corner  of  an  unpatented  claim  is  presumptively 
a  good  tie.— Londonderry  Co.  v.  United  Co.,  38  Colo.  480,  88 
P.  455: 

In  Vogel  v.  Warsing,  146  F.  949,  77  C.  C.  A.  199,  a  call  for 
a  mountain  by  name,  with  course  a  mile  distant,  was  held  a 
sufficient  ti«. 

Calling  for  Adjoining  or  Neighboring  Claims. 

The  earlier  decisions  were  to  the  effect  that  a  call  for  an- 
other mine  or  claim  was  not  a  call  for  a  permanent  monu- 
ment, and  that  a  location  certificate  having  such  a  call  and 
no  other,  or  no  other  sufficiently  specific,  was  not  a  com- 
pliance with  R.  S.  Sec.  2324.— Baxter  Co.  v.  Patterson,  3  N.  M. 
179,  3  P.  741;  Drummond  v.  Long,  9  Colo.  538,  13  P.  543,  15 
M.  R.  510 ;  Gilpin  Co.  v.  Drake,  8  Colo.  586,  9  P.  787.  As  late 
as  1896  an  extreme  ruling  to  the  same  effect  was  made  in 
an  Idaho  case,  Brown  v.  Levan,  4  Ida.  794,  46  P.  661,  over- 
ruled in  1902  by  Morrison  v.  Regan,  8  Ida.  291,  67  P.  955, 
22  M.  R.  69..  In  the  location  certificate  in  the  Levan  Case  the 
first  call  was  "about  one-half  mile  from  the  Hurt  mines,  the 
direction  being  Southwest."  That  call  of  itself  was  indefinite 
enough,  but  the  paper  also  called  for  three  adjoiners.  The 
Statutes  of  Idaho  (at  that  time)  required  adjoining  claims 
to  be  named.  The  Court  held  that  such  call  for  adjoiners  did 
not  aid  the  tie  to  the  Hurt  group  of  mines.  If  the  call  for 
the  adjoiners  of  itself  made  a  good  description  we  can  not 
see  why  such  call  should  be  rejected  as  not  aiding  the  defective 
tie  to  the  Hurt  mines,  from  the  mere  fact  that  to  call  for 
adjoiners  was  a  statutory  requirement  of  the  location  cer- 
tificate. 


DISCOVERY  AND  LOCATION.  59 

All  the  later  cases  hold  that  a  call  for  even  a  single  claim, 
either  as  an  adjoiner  or  near  neighbor,  makes  a  sufficient 
description.  That  a  mine  or  mining  claim  may  be  a  permanent 
monument  and  that  if  not.  so  developed  or  known  as  to  be  a 
permanent  monument  the  proof  of  such  fact  is  upon  the 
objecting  party.— Book  v.  Justice  Co.,  58  F.  106,  17  M.  R.  617 ; 
Riste  v.  Morton,  20  Mont.  139,  49  P.  656 ;  Kinney  v.  Fleming, 
6  Ariz.  263,  56  P.  723,  20  M.  E.  13 ;  Seidler  v.  Lafave,  4  N.  M. 
369,  20  P.  789,  overruling  the  Baxter  case,  supra;  Shattuck 
v.  Costello,  8  Ariz.  22,  68  P.  529,  22  M.  R.  136 ;  Street  v.  Delta 
Co.,  42  Mont.  371,  112  P.  701. 

A  notice  calling  for  ad  joiners  on  all  four  sides  was  held 
valid,  although  the  claim  was  described  as  in  a  quarter  sec- 
tion different  from  the  true  one. — Duryea  v.  Boucher,  67  Cal. 
141,  7  P.  421. 

Description  by  Degrees  and  Minutes  Not  Essential. 

A  record  based  on  a  location  made  as  above  directed,  the 
corners  and  side  stakes  being  marked  and  the  notice  set, 
which  so  identifies  the  situation  of  the  claim  (by  reference 
to  natural  objects  or  permanent  monuments  tied  to  its  dis- 
covery shaft  or  corners)  that  it  may  be  readily  found  by  a 
stranger  examining  the  record,  and  for  courses  calls  for  some 
certain  general  direction  and  otherwise  complies  with  all  the 
statutory  requirements  herein  stated — is  as  valid  as  one  which 
calls  for  degrees,  minutes,  metes  and  bounds. 

Indefinite  Description. 

Location  certificate  describing  claim  as  "No.  1  on  Bear 
Creek,"  with  little  or  no  further  description,  held  void.— 
Cloninger  v.  Finlaison,  230  F.  98. 

The  Terms  "Southerly,"  "Northerly,"  Etc., 

as  used  by  miners  in  location  certificates  and  notices,  are  not 
to  be  read  as  due  south  or  due  north  so  as  to  defeat  the  loca- 
tion.— S mith  v.  Newell,  86  F.  56;  Glass  v.  Basin  Co.,  22  Mont. 


60  DISCOVERY  AND  LOCATION. 

151.  55  P.  1047 ;  Wiltsee  v.  King  Co.,  1  Ariz.  95,  60  P.  896. 
And  the  word  "west"  may  be  read  "east"  when  necessary  to 
close  upon  the  starting  corner. — Upton  v.  Santa  Rita  Co.,  14 
N.  M.  96,  89  P.  275. 

In  Montana  the  holding  was  made  that  a  notice  of  location 
describing  the  course  of  the  vein  as  north  and  south  was 
good  to  support  a  location  on  a  vein  running  east  and  west. — 
Butte  Co.  v.  Radmilovich,  39  Mont.  157,  101  P.  1078. 

Precautions  at  Time  of  Location. 

The  side  and  corner  stakes  being  properly  set,  the  location 
notice  fixed  and  properly  inscribed,  and  the  distance  to  ties 
or  monuments  measured,  take  the  precaution  at  the  time  to 
measure  the  depth  of  the  discovery  shaft  to  see  that  the  full 
ten  feet  in  depth  exist,  recollecting  that  the  collar  is  apt  to  cave 
in  and  the  bottom  to  fill  up  with  soil,  inviting  an  attack  on 
the  location  for  want  of  legal  discovery.  Note  the  exact  result 
of  this  measurement  on  the  location  stake. 

Size  of  Stakes,  Etc. 

The  Colorado  Statute  says  that  the  posts  shall  be  substantial 
and  shall  be  sunk  in  the  ground.  The  Land  Office  regulations, 
on  survey  for  patent,  require  them  to  be  not  less  than  four 
inches  in  diameter,  three  feet  long,  and  set  eighteen  inches  in 
the  ground;  if  of  stone,  twenty- four  inches  long. — Rule  143. 

Trees,  Stumps  and  Boulders  As  Corner  Posts. 

In  Pollard  v.  SUvely,  5  Colo.  309,  2  M.  R.  229,  the  court 
held  that  a  stump  properly  marked  might  be  adopted  as  a 
boundary  stake,  and  there  is  no  doubt  that  a  stone  post 
literally  complies  with  the  law.  And  the  calling  for  trees  as 
corners,  when  in  fact  stakes  stood  for  corners,  has  been  treated 
as  immaterial  error,  when  there  were  other  calls  by  which 
to  fix  the  claim.— Upton  v.  Larkin,  1  Mont.  449,  17  P.  728,  15 
M.  R.  404;  Hansen  v.  Fletcher,  10  Utah  266,  37  P.  480.  The 


DISCOVERY  AND  LOCATION.  61 

L.  O.  Regulations  also  recognize  both  stones  and  rock  in  place. 
—Rule  143. 

Cutting  a  letter  into  a  solid  rock  held  not  equivalent  to  a 
stake.— Taylor  v.  Parenteau,  23  Colo.  368,  48  P.  505,  18  M.  E. 
534. 

Where  Stakes  Can  Not  Be  Set. 

Where  a  stake  can  not  be  driven  on  account  of  bed-rock,  it 
should  be  fixed  in  a  pile  of  stones  and  in  official  surveys  this 
marking  is  required  in  all  cases.  Where  a  stake  can  not  be  set 
on  account  of  precipitous  ground,  the  witness  stake  should 
be  set  as  near  as  possible  and  on  it  should  be  expressed  the 
course  and  distance  to  the  corner  or  center  stake,  for  which 
it  is  a  substitute.  The  provisions  of  the  Colorado  Statute  on 
this  point  (p.  23)  can  not  be  invoked  where  the  setting  of  the 
stakes  is  merely  difficult  or  inconvenient. — Croesus  Co.  v.  Colo- 
rado Co.,  19  F.  78.  Where  the  stakes  on  one  end  of  the  claim 
were  not  set,  merely  because  the  point  was  difficult  of  access, 
it  was  held  that  the  claim  was  not  valid. — Id.  A  like  ruling 
\vas  made  where  a  corner  fell  upon  a  railroad  embankment. — 
Seals  v.  Cone,  27  Colo.  473,  83  Am.  St.  Rep.  92,  20  M.  R.  591, 
62  P.  949.  And  as  a  matter  of  course,  the  failure  to  set  them 
through  inadvertence  or  neglect  would  be  fatal. — Patterson  v. 
Tarbell,  26  Or.  29,  37  P.  76. 

Variation  Between  Courses  and  Monuments. 

As  the  result  of  carelessness,  accident  or  defective  instru- 
ments, variations  between  the  courses  called  for  in  the  record 
and  the  monuments  on  the  ground,  are  matters  of  constant 
occurrence.  The  general  rule  in  such  cases  is  that  the  monu- 
ments control.— Cullacott  v.  Cash  Co.,  8  Colo.  179,  15  M.  R. 
392,  6  P.  211;  Book  v.  Justice  Co.,  58  F.  106,  17  M.  R.  617; 
Stonewall  Co.  v.  Peyton,  39  Fla.  726,  23  So.  440;  Galbrn  !!,  r. 
Shasta  Co.,  143  Gal.  94,  76  P.  901;  Treadwcll  v.  Marrs,  '.)  An/.. 
333,  83  P.  350. 


62  DISCOVERY  AND  LOCATION. 

Corners  Misdescribed — Monuments  Lost. 

It  was  held  in  the  Hardin  Lode  case  (Pollard  v.  Shively),  5 
Colo.  309,  2  M.  R.  229,  that  the  monuments  would  not  control 
where  they  varied  from  the  kind  of  monuments  called  for 
in  the  record;  that  a  call  for  a  "post"  was  not  satisfied  by 
a  "stump."  But  in  Upton  v.  Larkin,  1  Mont.  449,  17  P.  728, 
15  M.  R.  404,  it  was  allowed  to  be  shown  that  the  pine  trees 
called  for  as  corners  were  really  stakes.  Where  all  the  cor- 
ners are  gone  the  calls  of  the  record  should  control  rather 
than  the  recollection  of  witnesses.  Tiggeman  v.  Mrzlak,  4 
Mont.  19,  105  P.  77.  Both  the  Hardin  Lode  case  and  this 
Montana  case  support  the  rule  that  to  control  the  calls,  the 
monuments  must  remain  upon  the  ground.  This  rule  is  neces- 
sary to  prevent  the  swinging  of  the  location. — Duncan  v.  Eagle 
Eock  Co.,  48  Colo.  569,  139  Am.  St.  Rep.  288,  111  P.  588; 
Swanson  v.  Koeninger,  25  Ida.  361,  137  P.  891. 

Variations  Chargeable  to  Connected  Plat. 

The  U.  S.  Surveyor  General  of  each  State  keeps  what  is 
called  the  "Connected  Plat,"  purporting  to  show  every  ap- 
proved survey  in  relation  to  each  other  on  its  proper  section. 
Where  the  first  survey  on  any  section  made  an  erroneous  call 
for  a  Government  corner,  say  1300  feet,  when  the  proper 
measurement  was  1600  feet,  it  was  platted  as  1300  feet  dis- 
tant. A  second  survey  correctly  measured  would  show  a 
certain  distance  from  the  corner,  but,  of  course,  would  not 
tie  to  the  first  survey  as  traced  on  the  connected  plat.  Instead 
of  recognizing  the  error  as  soon  as  discovered  the  department 
persistently  for  years  compelled  each  successive  applicant  to 
treat  the  first  survey  as  correct  and  to  tie  to  it  accordingly. 

This  resulted  in  the  issue  of  patents  which  really  overlapped 
prior  surveys,  but  the  field  notes  appeared  clear  of  any  over- 
lap ;  conversely,  an  overlap  and  consequent  exclusion  would 
appear  where  there  was  in  fact  no  conflict  with  any  prior 
survey. 


DISCOVERY  AND  LOCATION.  63 

It  was  to  remedy  this  state  of  affairs  that  A.  G.  Sec.  2327 
was  amended  in  1904  (p.  647).  The  effect  of  the  amendment 
is,  however,  only  to  emphasize  the  common  law  rule  declared 
in  the  Cullacott  case  above  cited. 

Patent  for  a  full  claim  held  to  convey  the  entire  1500  feet, 
notwithstanding  strong  proof  that  the  original  corners  were 
135.5  feet  short  of  that  length.  Sec.  2327,  requiring  that 
monuments  control,  held  not  to  apply  to  a  prior  grant  on  the 
evidence  in  the  case. — Conkling  Co.  v.  Silver  King  Co.,  230 
F.  561. 

Maintaining  Stakes. 

Once  properly  set,  stakes  have  performed  their  original 
office  and  their  subsequent  removal  or  obliteration  not  done 
by  the  act  of  the  party  does  not  vitiate  the  claim. — Book  v. 
Justice  Co.,  58  F.  107,  17  M.  R.  617 ;  McEvoy  v.  Hyman,  25  F. 
596, 15  M.  R.  397 ;  Smith  v.  Newell,  86  F.  56 ;  Gobert  v.  Butter- 
field,  23  Cal.  App.  1, 136  P.  516. 

But  where  not  maintained,  a  misdescription  in  the  record, 
otherwise  immaterial,  may  become  serious,  if  not  fatal,  as 
above  stated,  because  to  correct  courses  or  other  errors  by 
monuments,  the  monuments  must,  in  general,  be  found  upon 
the  ground.— Meyer  Co.  v.  Steinfield,  9  Ariz.  245,  80  P.  400. 

A  Location  May  Be  Made  by  an  Agent, 

and  in  such  case  written  authority  is  not  essential. — Murley  v. 
Ennis,  2  Colo.  300, 12  M.  R.  360 ;  Schultz  v.  Keeler,  2  Ida.  305, 
333,  13  P.  481 ;  Bush  v.  French,  1  Ariz.  99,  25  P.  816 ;  Dunlap 
v.  Pattison,  4  Ida.  473,  95  Am.  St.  Rep.  140,  42  P.  504;  Moore 
v.  Hamerstag,  109  Cal.  122,  18  M.  R.  256,  41  P.  805 ;  Whiting 
v.  Straup,  17  Wyo.  1,  129  Am.  St.  Rep.  1093,  95  P.  849.  In 
such  case  the  location  certificate  should  be  signed  by  writing 
the  name  of  the  principal,  followed  by  that  of  the  agent — 
"Barton  A.  Hopkins  by  J.  Mason  Hall,  agent.'"  In  writing 
names  on  stakes  and  notices  this  is  unnecessary — write  only 
the  name  of  the  principal — because  such  a  signing  is  not  a 


64  DISCOVERY  AND  LOCATION. 

signature  and  it  is  immaterial  by  whom  done  so  that  the  act 
is  recognized  or  adopted  by  the  party  whose  name  is  used. 
Even  in  subscribing  the  location  certificate  the  names  are 
often  written  by  the  party  \yho  makes  out  the  body  of  the 
paper  (without  any  mention  of  agency),  and  we  do  not 
apprehend  that  this  invalidates  the  document.  Such  writings 
are  obviously  of  a  class  different  from  deeds,  notes,  etc.,  where 
a  name  can  be  legally  subscribed  as  a  rule  only  by  the  party 
himself  or  by  one  fully  authorized  so  to  do  by  power  of  attor- 
ney or  other  formal  authorization. — Morton  v.  Solairibo  Co., 
26  Cal.  527,  4  M.  R.  463;  Gore  v.  McBrayer,  18  Gal.  583,  1 
M.  R.  645 ;  Morrison  v.  Regan,  8  Ida.  291,  67  P.  955,  22 
M.  R.  69. 

Where  a  location  is  made  in  the  name  of  a  supposed  prin- 
cipal there  must  either  be  a  previous  authorization  to  use  the 
name  of  a  principal  or  a  subsequent  ratification  or  adoption 
of  the  act.  Where  the  name  of  an  absent  person  is  used 
without  his  knowledge  there  is  no  legal  owner  to  the  claim — 
no  person  to  stand  for  its  paternity — and  the  location  is  not 
good  as  against  a  later  valid  appropriation. — Thompson  v. 
Spray,  72  Cal.  531,  14  P.  182. 

A  location  may  be  made  by  the  use  of  the  name  of  another 
even  without  his  knowledge  if  there  is  a  local  rule  authorizing 
it  or  a  subsequent  ratification. — Whiting  v.  Straup,  17  Wyo.  1, 
129  Am.  St.  Rep.  1093,  95  P.  850. 

Discovery  by  an  option  holder  perfects  the  title  of  the  pro- 
posed vendor.— Eooney  v.  Barnette,  200  F.  700,  119  C.  C.  A. 
116. 

For  agency  locations  in  Alaska,  see  p.  635. 

A  Corporation  May  Locate. 

This  has  been  expressly  decided  in  the  cases  of  McKinley  v. 
Wheeler,  130  U.  S.  630,  32  L.  Ed.  1048,  9  Sup.  Ct.  Rep.  638, 
16  M.  R.  65,  and  Thomas  v.  Chisholm,  13  Colo.  105,  16  M.  R. 
122,  21  P.  1019.  It  is  required  only  that  it  be  cluirtered 
under  the  laws  of  some  federal  State- or  Territory.  It  does 


DISCOVERY  AND  LOCATION.  65 

not  have  to  show  the  citizenship  of  its  stockholders. — Doe  v. 
Vfaicrloo  Co.,  70  F.  463,  17  C.  C.  A.  190,  18  M.  B.  265. 

Minors. 

The  case  of  Thompson  v.  Spray,  supra,  holds  that  a  minor 
child  may  make  a  valid  mining  location.  Where  a  minor  old 
enough  to  prospect  and  work  locates  a  claim  we  do  not  see 
why  his  minority  should  invalidate  his  title,  but  the  use  of 
the  names  of  minor  children  to  obstruct  creditors  or  for  other 
sinister  purpose  should  certainly  be  unable  to  resist  attack 
made  in  proper  form.  Where  a  minor  takes  by  descent  his 
title  is  as  unimpeachable  as  that  of  his  ancestor. 

By  Government  Employee — Deputy  Surveyor. 

Section  452,  R.  S.,  prohibits  the  location  of  government  land 
by  any  officer,  clerk  or  employee  of  the  General  Land  Office. 
In  Lavagnino  v.  Uhlig,  26  Utah  1,  99  Am.  St.  Rep.  808,  71  P. 
1046,  22  M.  R.  610,  the  Supreme  Court  of  Utah  held  that  a 
lode  location  by  a  Deputy  Mineral  Surveyor  was  void  under 
said  Section.  WasJcey  v.  Hammer,  170  F.  31,  95  C.  C.  A.  305, 
holds  the  same  in  strong  terms.  This  case  was  affirmed  in 
223  U.  S.  85,  56  L.  Ed.  359,  32  Sup.  Ct.  Rep.  187,  and  the 
case  to  the  contrary,  Hand  v.  Cook,  29  Nev.  518,  92  P.  3,  is  of 
course  nullified  by  the  higher  Federal  construction.  Nor  can 
he  make  a  mineral  or  homestead  entry. — 29  L.  D.  333.  38  L.  D. 
346. 

A  mineral  surveyor  is  interested  when  he  owns  stock  in 
a  corporation  claimant. — 40  L.  D.  217. 

Location  Prevented  by  Colluding  Co-Tenant. 

If  the  staking  and  record  are  in  fact  not  made  the  claim 
never  becomes  perfected,  although  the  reason  be  that  a  co- 
owner  violated  his  duty  by  colluding  with  third  parties  and 
allowing  them  to  take  up  the  ground.  The  sole  remedy  of 
the  injured  party  is  by  appropriate  action  against  his  co- 


66  DISCOVERY  AND  LOCATION. 

owner,  based  on  his  fraud. — Lockhart  v.  Wills,  9  N.  M.  3-11, 
54  P.  336,  19  M.  R.  497. 

Where  a  location  was  made  in  the  name  of  one  out  of 
two  prospectors,  who  were  equally  interested,  the  single 
locator  became  trustee  for  his  associate  for  one-half  of  the 
title;  but  an  agreement  merely  to  locate,  not  to  work  or 
develop,  did  not  make  them  partners. — Hendrichs  v.  Morgan, 
167  F.  106,. 92  C.  C.  A.  558. 

Locations  Irregular  in  Shape. 

The  contemplation  of  the  law  is  that  a  lode  claim  should 
be  substantially  a  parallelogram. — Del  Monte  case,  171  U.  S. 
84,  43  L.  Ed.  72,  18  Sup.  Ct.  Rep.  895,  19  M.  R.  370.  But  it 
seems  that  with  the  limitation  that  the  length  may  not  exceed 
1,500  feet  nor  the  width  600  feet  a  location  may  be  made  in 
any  convenient  shape,  the  only  loss  from  such  form  of  survey 
being  thai;  no  extralateral  rights  can  be  claimed  for  a  survey 
which  has  not  parallel  end  lines.  Surveys  in  the  shape  of  a 
horse  shoe  and  in  the  shape  of  a  triangle  respectively  were 
considered  in  the  Stone  Lode  case  (Iron  Silver  Co.  v.  Elgin 
Co.),  118  U.  S.  196,  30  L.  Ed.  98,  6  Sup.  Ct.  Rep.  1177,  15 
M.  R.  641,  and  in  Montana  Co.  v.  Clark,  42  F.  626,  16  M.  R. 
80 — and  to  both  all  dip-rights  were  denied.  In  the  North 
Star  case,  83  F.  658,  28  C.  C.  A.  333,  19  M.  R.  118,  both  pat- 
ents were  of  no  conformable  shape,  but  each  of  them  had 
issued  on  a  consolidation  of  claims  located  before  1872. ' '  There 
is  liberty  of  surface  form  under  the  Act  of  1872." — Walrath  v. 
Champion  Co.,  171  U.  S.  312,  43  L.  Ed.  170,  18  Sup.  Ct.  Rep. 
909,  19  M.  R.  410. 

Locating  Across  the  Strike. 

The  loss  of  extralateral  rights  by  such  location  is  considered 
under  APEX.  In  Walsh  v.  Mueller,  16  Mont.  180,  40  P.  292, 
location  had  been  made,  fraudulently,  as  was  alleged  in  the 
complaint,  across  instead  of  along  the  strike.  We  can  not  see 
how  fraud  could  be  predicated  upon  such  fact  standing  alone. 


DISCOVERY  AND  LOCATION.  67 

It  simply  loses  the  right  to  follow  on  the  dip  and  the  sur- 
face beyond  the  proper  distance  from  center  of  vein  is  open 
to  hostile  location,  as  explained  by  diagram  on  p.  20. 

Sunday. 

In  Union  Co.  v.  Leitch,  24  Wash.  585,  85  Am.  St.  Rep.  961, 
64  P.  829,  the  first  act  of  location  was  done  on  a  Sunday  and 
in  subsequent  contest  no  point  was  made  on  this  fact. 

It  has  been  intimated  that  where  the  last  day  of  filing  falls 
on  a  Sunday  the  locator  is  within  the  time  if  he  files  on  the 
Monday  following. — Columbia  Co.  v.  Duchess  Co.,  13  Wyo. 
244,  79  P.  385. 

Neglect  of  Statutory  Details  of  Location. 

Omission  to  establish  center  end  stake  (along  with  failure 
to  verify  the  certificate)  held  fatal  under  Oregon  Statute. — 
Wright  v.  Lyons,  45  Or.  167,  77  P.  81.  The  same  as  to  cor- 
ner stake  in  Colorado. — Beals  v.  Cone,  27  Colo.  473,  83  Am. 
St.  Rep.  92,  20  M.  R.  592,  62  P.  948.  Contra,  Warnock  v. 
DeWitt,  11  Utah  325,  40  P.  205.  Compliance  with  state  law 
must  be  proved. — Copper  Globe  Co.  v.  Allman,  23  Utah  410, 
21  M.  R.  296,  64  P.  1019. 

Parties  made  a  location  valid  to  the  extent  of  the  Congres- 
sional requirements,  but  failed  to  comply  with  the  State 
Statute  then  in  force.  The  State  Statute  was  repealed  while 
the  locators  continued  in  possession.  Held  that  upon  the 
repeal  the  location  became  valid.  MCFARLAND,  J.,  dissents. — 
Dunnnell  v.  Dyer,  145  Cal.  12,  7  L.  R.  A.  (N.  S.)  763,  78 
P.  247. 

A  location  notice  is  not  required  by  the  U.  S.  Mining  acts, 
nor  at  all  if  not  called  for  by  District  Rule  or  Statute. — 
Anderson  v.  Caughey,  3  Cal.  App.  22,  84  P.  223. 

The  case  of  Street  v.  Delta  M.  Co.  contains  a  fair  review 
of  what  constitutes  a  valid  location  in  Montana.  42  Mont.  371, 
112  P.  701.  McCleary  v.  Broaddus,  111  P.  125, 14  Cal.  App.  60, 
is  a  like  case  on  location  in  California. 


68  STATUTORY  REQUIREMENTS. 

Fraudulent  Locations. 

The  government  will  not  patent  locations  made  for  the 
obvious  purpose  of  securing  control  of  a  trail  down  a  canyon 
and  preventing  its  free  use  by  the  public. — 36  L.  D.  66. 


TABLE  OP  STATUTORY  REQUIREMENTS. 

Indispensable  Federal  Requirements. 

Whether  demanded  or  not  by  State  Statute  or  District  Rules, 
the  Federal  Statute  requires  that  the  location  must  be  dis- 
tinctly marked  on  the  ground,  so  that  its  boundaries  can  be 
readily  traced,  and  the  location  certificate  must  contain : 

(1)  The  name  or  names  of  the  locators. 

(2)  The  date  of  the  location,  and 

(3)  Such  a  description  by  reference  to  natural  object  or 
permanent  monument  as  will  identify  the  claim. — R.  S.  Sec. 
2324. 

Before  filing  his  location  certificate  the  discoverer  is  required 
by  statute  in: 

Colorado. 

1.  To  post  at  the  point  of  discovery,  on  the  surface,  a  notice  contain- 
ing the  name  of  the  lode,  the  name  of  the  locator  and  the  date  of  the 
discovery. 

2.  Within  sixty  days  from  the  discovery,  to  sink  a  discovery  shaft  ten 
feet  deep,  from  the  lowest  part  of  the  rim  of  shaft,  or  deeper,  if  neces- 
sary, to  show  a  well  defined  crevice. 

3.  To  mark  the  surface  boundaries  by  six  posts  sunk  in  the  ground, 
one  at  each  corner  and  one  at  the  center  of  each  side  line  hewed  or 
marked  on  the  side  or  sides  in  towards  the  claim. 

4.  The  disclosure  of  the  lode  in  an  open  cut,  cross-cut,  or  tunnel  at  the 
depth  of  ten  feet  below  the  surface,  or  an  adit  at  least  ten  feet  in 
along  the  lode,  suffices  instead  of  the  ten-foot  shaft. 


STATUTORY  REQUIREMENTS.  6<J 

5.  Within  three  months  from  date  of  discovery  to  file  a  location  cer- 
tificate with   the  County   Recorder  giving  a   proper  description  of  the 
claim,  as  required  by  Federal  Statute,  and  containing  also: 
a. — The  name  of  the  lode; 
b. — The  name  of  the  locator; 
c. — The  date  of  the  location; 

d. — The  number  of  feet  in  length  on  each  side  of  the  center  of  the 
discovery  shaft,  and 
e. — The  general  course  of  the  lode. 

Alaska. 

LOCATION  NOTICE. 

(Act  of  1915) 

Section  11.  The  notice  of  location  posted  upon  the  claim  must  con- 
tain the  following: 

First — The  name  of  the  lode  or  claim. 

Second — The  name  of  the  locator  or  locators. 

Third — The  number  of  linear  feet  claimed  in  length  along  the  center 
line  of  the  claim,  each  way  from  the  point  of  discovery,  with  the  width 
on  each  side  of  center  line  of  the  claim  at  the  surface,  and  the  general 
course  of  the  vein  or  lode,  as  near  as  can  be  determined. 

DISCOVERY. 

Section  12.  The  discovery  upon  which  the  location  is  based  must,  at 
the  time  of  location,  be  defined  upon  the  ground  by  the  removal  of  so 
much  of  the  surface  material  as  may  be  necessary  clearly  to  expose  to 
view  the  discovery  claimed,  and  in  such  manner  as  to  perpetuate  its 
identity,  and  preserve  it,  so  far  as  practicable,  from  obliteration;  also 
its  locus  must  be  witnessed  by  erecting  a  substantial  monument  or  post, 
bearing  the  notice  of  location,  as  near  the  discovery  as  practicable. 

STAKES— LINE  MONUMENTS. 

Section  13.  The  locator  must  so  define  the  boundaries  of  his  claim 
upon  the  ground  that  they  may  be  readily  traced  *  *  *  .  In  no 
case  shall  the  markings  of  the  boundaries  of  the  claim  upon  the  ground 
consist  of  less  than  the  following:  The  erection  at  each  corner  of  the 
claim  and  at  each  angle  in  the  side  lines,  if  such  there  be,  of  a  sub- 
stantial monument  or  stake,  or  the  blazing  of  a  tree,  at  least  three 
inches  in  diameter,  each  of  which  shall  bear  the  initial  of  the  lode  or 
claim  and  a  designation  as  to  the  point  upon  the  boundaries  of  the  claim 


70  STATUTORY  REQUIREMENTS. 

which  the  said  monument  represents.  The  center  line  and  both  end  lines 
shall  be  marked  by  blazing  trees  or  by  cutting  brush,  or  the  erecting  of 
line  monuments,  as  the  nature  of  the  country  requires  so  that  the  lines 
of  the  location  may  be  readily  traced  upon  the  ground. 

A  reasonable  time,  not  to  exceed  30  days,  is  allowed  to 
complete  the  staking.  Sec.  13. 

Within  90  days  after  posting  the  location  notice,  file  with 
the  recorder  of  the  district  a  certificate  which  "must  contain 
date  of  location,  name  or  names  of  locator  or  locators,  and  such 
a  description  of  the  claim,  with  reference  to  some  natural 
object  or  permanent  monument,  as  will  identify  the  claim 
located,  and  may  also  contain  such  further  matter  as  will 
serve  to  more  completely  describe  the  boundaries  and  locus 
of  the  claim."  Sec.  14. 

Arizona. 

1.  Erect  at  point  of  discovery  stone  monument  three  feet  high,  or  a 
post  four  feet  above  ground,  on  which  post  notice  signed  by  locator 
containing : 

a. — The  name  of  the  claim  located ; 

b. — The  name  or  names  of  the  locators; 

c. — The  date  of  the  location; 

d. — The  length  and  width  of  the  claim  in  feet,  and  the  distance  in 
feet  from  the  point  of  discovery  to  each  end  of  the  claim; 

e. — The  general  course  of  ihe  claim ; 

f. — The  locality  of  the  claim  with  reference  to  some  natural  object 
or  permanent  monument  whereby  the  claim  can  be  identified. 

2.  Within  ninety  days  "from  the  time  of  the  location"  to  sink  a 
discovery  shaft  in  the  claim  to  a  depth  of  at  least  eight  feet  from  the 
lowest  part  of  the  rim  of  the  shaft  at  the  surface,  and  deeper  if  neces- 
sary, until  there  is  disclosed  in  said  shaft  mineral  in  place. 

3.  Within  same  time  mark  boundaries  by  six  substantial  posts,  project- 
ing at  least  four  feet  above  the  surface  of  the  ground,  or  by  substantial 
stone  monuments  at  least  three  feet  high,  to-wit,  one  at  each  corner,  and 
one  at  the  center  of  each  end  line. 

4.  Any  open  cut,  adit,  or  tunnel  which  shall  be  made  as  above  pro- 
vided for,  as  a  part  of  the  location  of  a  lode  mining  claim,  and  which 
shall  be  equal  in  amount  of  work  to  a  shaft  eight  feet  deep  and  four  feet 
wide  by  six  feet  long,  and  which  shall  cut  a  lode  or  mineral  in  place  at  a 


STATUTORY  REQUIREMENTS.  71 

depth  of  ten  feet  from  the  surface  shall  be  equivalent,  as  discovery  work, 
to  a  shaft  sunk  from  the  surface. 

5.  Within  ninety  days  from  time  of  location,  record  with  the  County 
Recorder  a  copy  of  the  location  notice ,  posted. 

California. 

A  mining  code  was  passed  in  1897,  but  repealed  in  1899.  In 
1909  the  following  was  enacted : 

The  locator  of  a  lode  claim  is  required: 

1.  To  post  at  the  point  of  discovery  a  notice  of  location  which  notice 
must  contain: 

First — The  name  of  the  lode  or  claim. 

Second — The  name  of  the  locator  or  locators. 

Third — The  number  of  linear  feet  claimed  in  length  along  the  course 
of  the  vein,  each  way  from  the  point  of  discovery  with  the  width  on  each 
side  of  the  center  of  the  claim,  and  the  general  course  of  the  vein  or 
lode,  as  near  as  may  be. 

Fourth — The  date  of  location. 

Fifth — Such  description  of  the  claim  by  reference  to  some  natural 
object  or  permanent  monument  as  will  identify  the  claim  located. 

2.  The  locator  must  define  the  boundaries  of  his  claim  so  that  they 
may  be  readily  traced. 

3.  Within  thirty  days  after  the  posting  of  the  notice  record  a  true 
copy  thereof  in  the  office  of  the  County  Recorder. 

Idaho. 

LODE  LINE. 

1.  Mining  claims  hereafter  located  upon  veins  or  lodes  of  quartz 
or  other  rock  in  place  bearing  any  of  the  metals  or  other  valuable 
deposits  mentioned  in  section  2320  of  the  Revised  Statutes  of  the 
United  States  may  extend  to  three  hundred  feet  on  each  side  of  the 
middle  of  the  vein  or  lode;  provided,  that  when  the  locators  have 
set  stakes,  posts,  or  monuments  described  in  the  following  section,  to 
indicate  the  line  of  the  vein,  ledge,  or  lode,  such  stakes,  posts,  or 
monuments  must  be  taken  for  the  purpose  of  such  location,  to  mark 
correctly  the  line  thereof,  and  such  line  must  not  afterward  be  changed  so 
as  to  affect  rights  acquired  or  interfere  with  any  locations  made  subse- 
quent thereto.  Rev.  Code,  Sec.  32QG. 


72  STATUTORY  REQUIREMENTS. 

DISCOVERY  MONUMENT.   LOCATION  NOTICE. 

2.  The  locator,  at  the  time  of  making  the  discovery  of  such  vein  or 
lode   must  erect  a  monument  at   such   place  of   discovery,   upon   which 
he  must  place  his  name,  the  name  of  the  claim,  the  date  of  discovery, 
and  distance  claimed  along  the  vein  each  way  from  such  monument. 
Within  ten  days  from  the  date  of  discovery,  he  must  mark  the  boun- 
daries of  his  claim  by  establishing  at  each  corner  thereof  and  at  any 
angle  in  the  side-lines,  a  monument  marked  with  the  name  of  the  claim 
and  the  corner  or  angle  it  represents;  also  at  the  time  of  so  marking 
his  boundaries,  he  must  post  at  his  discovery  monument  his  notice  of  loca- 
tion, in  which  must  be  stated:  First,  the  name  of  the  locator;  second, 
the  name  of  the  claim;  third,  the  date  of  discovery;  fourth,  the  direc- 
tion and  distance  claimed  along  the  ledge  from   the  discovery;   fifth, 
the  distance  claimed  .on  each  side  of  the  middle  of  the  ledge;  sixth,  the 
distance   and   direction   from  the   discovery  monument  to   such   natural 
object  or  permanent  monument,  if  any  such  there  be,  as  will  fix  and 
describe  in  the  notice  itself,  the  location  of  the  claim;    and  seventh, 
the  name  of  the  mining  district,  county,  and  state. 

BOUNDING  MONUMENTS. 

When,  from  any  cause,  a  monument  can  not  be  safely  planted  at 
the  true  corner  or  angle  it  may  be  placed  as  near  thereto  as  practicable, 
and  so  marked  as  to  indicate  the  place  of  such  corner  or  angle.  Monu- 
ments may  be  made  of  any  such  material  or  form  as  will  readily  give 
notice,  and  when  of  posts  or  trees,  they  must  be  hewn  and  marked 
upon  the  side  facing  toward  the  discovery,  and  must  be  at  least  four 
inches  square  or  in  diameter.  Monuments  must  be  at  least  four  feet 
high  above  the  ground,  and  trees  must  be  so  hewn  as  to  readily  attract 
attention.  At  the  time  the  locator  so  marks  the  boundaries  of  his  claim 
he  may  do  so  in  any  direction  that  will  not  interfere  with  rights  or 
claims  which  existed  prior  to  his  discovery.  Rev.  Code,  Sec.  3207. 

DISCOVERY  SHAFT. 

3.  Within  sixty  days  after  such  location,  the  locator  or  his  assigns 
must  sink  a  shaft  upon  the  lode  to  the  depth  of  at  least  ten  feet  from 
the  lowest  part  of  the  rim  of  such  shaft  at  the  surface,  and  of  not 
less  than  sixteen  square  feet  area.    Any  excavation  which  shall  cut  such 
vein   ten   feet   from  the   lowest   part   of   the   rim   of   such   shaft,   and 
which  shall  measure  one  hundred  and  sixty  cubic  feet  in  extent,  shall 
be    considered    a    compliance   with    this    provision.     Any    located    claim 
up^n  which  work  has  been  done  in  compliance  with  the  above  require- 
ments is  not,  unless  abandoned,   subject  to  relocation  for  a  period   of 
ninety  days  from  and  after  the  date  of  location.    Eev.  Code,  Sec.  SS08. 


STATUTORY  REQUIREMENTS.  73 

RECORD. 

4.  Within  ninety  days  after  the  location  of  the  claim,  the  locator  or 
his  assigns  must  file  for  record  in  the  office  of  the  county  recorder 
of  the  county,  or  of  the  deputy  recorder  of  the  mining  district  in  which 
the  claim  is  situated,  a  substantial  copy  of  his  notice  of  location.  Rev. 
Code,  Sec.  3209. 

AFFIDAVIT. 

See.  1.  At  or  before  the  time  of  presenting  a  location  notice  for 
record,  whether  it  be  for  a  quartz  or  placer  claim,  one  of  the  locators 
named  in  the  same  must  make  and  subscribe  an  affidavit  in  writing  on  or 
attached  to  the  notice,  substantially  as  follows,  to-wit: 

State  of  Idaho,         1 
County  of j 

I, ,  do  solemnly  swear  that  I  am  a  citizen  of  the 

United  States  of  America  (or  have  declared  my  intentions  to  become 
such),  and  that  I  am  acquainted  with  the  mining  ground  described  in 

this  notice  of  location,  and  herewith  called ledge,  lode,  or  claim; 

that  the  ground  and  claim  therein  described,  or  any  part  thereof, 
has  not,  to  the  best  of  my  knowledge  and  belief,  been  located  according 
to  the  laws  of  the  United  States  and  of  this  state,  or  if  so  located, 
that  the  same  has  been  abandoned  or  forfeited  by  reason  of  the  failure 
of  such  former  locators  to  comply  in  respect  thereto  with  the  require- 
ments of  said  laws,  and  (in  the  case  of  quartz  claims)  that  I  have 
opened  new  ground  to  the  extent  or  depth  of  ten  feet  as  required  by  the 
laws  of  Idaho. 

(Signature) 

Subscribed  and  sworn  to  before  me  this day  of , 

A.  D.  19.... 

(Signature) 

Bev.  Code,  Sec.  3216. 

Montana. 

(Act  of  1907) 
DISCOVERY   NOTICE. 

1.  Post  conspicuously  at  point  of  discovery  a  notice  containing  the 
name  of  the  claim,  name  of  locator,  date  of  location,  which  shall  be  the 
date  of  posting,  ' '  and  the  approximate  dimensions  or  area  of  the  claim. ' ' 

STAKING    CORNERS. 

2.  Within  thirty  days  after  posting,  place  monument  at  each  corner 
or  angle,  to-wit: 

a. — A  tree  at  least  eight  inches  in  diameter  blazed  on  four  sides. 


74  STATUTOEY  REQUIREMENTS. 

b. — A  post  at  least  four  inches  square  by  four  and  one-half  feet  long, 
set  one  foot  in  the  ground,  unless  solid  rock  occur  at  less  depth,  sur- 
rounded, in  all  cases,  by  mound  of  earth  or  stone,  at  least  four  feet  in 
diameter  by  two  feet  high.  A  squared  stump  of  same  size  and  so  mounded 
is  the  equivalent  of  a  post. 

c. — A  stone  at  least  six  inches  square  by  eighteen  inches  in  length, 
set  two-thirds  of  its  length  in  the  ground,  with  a  mound  of  earth  or 
stone  alongside  at  least  four  feet  in  diameter  by  two  feet  in  height,  or 

d. — A  boulder  at  least  three  feet  above  the  natural  surface  of  the 
ground  on  the  upper  side. 

The  above  classes  of  monuments  (a-d)  are  enumerated  as  prima  facie 
sufficient,  but  if  others  are  used  it  shall  be  a  jury  question  whether  they 
sufficiently  mark  the  location  so  that  "its  boundaries  can  be  readily 
traced." 

Each  monument  must  be  marked  with  name  of  claim  and  designation 
of  the  corner  either  by  number  or  cardinal  point. 

DISCOVERY  SHAFT  OR  CUT. 

3.  Within  sixty  days  after  posting  sink  discovery  shaft  of  at  least  ten 
feet  vertical  depth  below  lowest  part  of  the  rim,  or  deeper  if  neces- 
sary, to  disclose  the  vein.    Cubical  contents  must  be  not  less  than  one 
hundred  and  fifty  cubic  feet. 

4.  Any  cut  or  tunnel  which  discloses  the  fode  at  ten  feet  vertical  depth, 
with  150  cubic  feet  of  excavation,  is  equivalent  to  a  discovery  shaft. 

Where  the  vein  is  disclosed  at  less  than  ten  feet  depth  any  deficiency 
in  the  depth  of  the  discovery  may  be  compensated  by  equivalent  work 
at  other  points  on  the  claim.  At  least  seventy-five  cubic  feet  of  excava- 
tion must  show  in  the  discovery  shaft  and  the  other  seventy-five  feet 
may  be  done  elsewhere. 

LOCATION    CERTIFICATE. 

5.  Within  sixty  days  after  posting  record  with  County  Recorder  cer- 
tificate of  location  containing : 

First — The  name  of  the  lode  or  claim. 

Second — The  name  of  the  locator  or  locators,  if  there  be  more  than  one. 

Third — The  date  of  location  and  such  description  of  said  claim,  with 
reference  to  some  natural  object  or  permanent  monument  as  will  identify 
the  claim. 

Fourth — The  direction  and  distance  claimed  along  the  course  of  the 
vein  each  way  from  the  discovery  shaft,  cut  or  tunnel  with  the  width 
claimed  on  each  side  of  the  center  of  the  vein. 

6.  The  location  certificate  must  be  verified  by  one  of  the  locators,  or 
the  authorized  agent  of  the  locators,  or  by  any  officer  or  agent  of  the 
company,  when  a  corporation  is  the  locator. 


STATUTORY  REQUIREMENTS.  75 

VERIFICATION. 

State  of  Montana, 
County  of  Silver  Bow. 

Before  me,  the  subscriber,  a  Notary  Public  in  and  for  said  county,  per- 
sonally appeared  Malcolm  H.  Carpenter,  to  me  personally  known,  who, 
being  duly  sworn,  saith  that  he  is  a  citizen  of  the  United  States  and 
discoverer  and  locator  of  the  Asia  Lode  described  in  the  within  certifi- 
cate of  location  subscribed  by  him;  that  the  claim  is  staked  and  located 
on  the  ground  as  in  said  certificate  described,  and  that  the  location  notice 
was  posted  at  the  point  of  discovery;  and  that  the  said  certificate  and  all 
statements  therein  made  are  correct  and  true. 

(Jurat)  MALCOLM  H.  CABPENTEB. 

Nevada. 

We  print  the  whole  of  the  three  sections  of  the  Act  of 
1900,  amended  in  1907.  They  seem  to  require  a  discovery 
shaft  or  cut,  monuments  at  each  corner  and  at  the  center  of 
each  side  line,  notice  posted  at  time  of  discovery  and  a  double 
record,  one  with  the  County  Recorder  and  one  Ttith  the  Dis- 
trict Recorder. 

LOCATION  NOTICE. 

Sec.  1.  Any  person,  a  citizen  of  the  United  States  or  one  who  has  de- 
clared his  intention  to  become  such,  who  discovers  a  vein  or  lode,  may 
locate  a  claim  upon  such  vein  or  lode  by  defining  the  boundaries  of  the 
claim  in  the  manner  hereinafter  described,  and  by  posting  a  notice  of  such 
location  at  the  time  and  point  of  discovery,  which  notice  must  be  posted 
upon  one  of  the  several  monuments  prescribed  in  Section  2  of  this  Act, 
and  such  notice  must  contain: 

First — The  name  of  the  lode  or  claim; 

Second — The  name  of  the  locator  or  locators; 

Third— The  date  of  the  location; 

Fourth — The  number  of  linear  feet  claimed  in  length  along  the  course 
of  the  vein,  each  way  from  the  point  of  discovery,  with  the  width  on  each 
side  of  the  center  of  the  vein,  and  the  general  course  of  the  vein  or  lode 
as  near  as  may  be. — Bev.  Laws  of  1912,  Sec.  %4%%. 

DISCOVERY  SHAFT. 

Sec.  2.  The  locator  of  the  lode  mining  claim  must  sink  a  discovery 
shaft  upon  the  claim  located  four  feet  by  six  feet  to  the  depth  of  at  least 


76  STATUTORY  REQUIREMENTS. 

ten  feet  from  the  lowest  part  of  the  rim  of  such  shaft  at  the  surface,  or 
deeper,  if  necessary  to  show  by  such  work  a  lode  deposit  of  mineral  in 
place;  a  cut  or  cross-cut  or  tunnel  which  cuts  the  lode  at  a  depth  of  ten 
feet  or  an  open  cut  along  the  said  ledge  or  lode,  equivalent  in  sixe  to  a 
shaft  four  feet  by  six  feet  by  ten  feet  deep,  is  equivalent  to  a  discovery 
shaft. 

DEFINING  BOUNDARIES.     SIZE  OF  STAKES. 

The  locator  must  define  the  boundaries  of  his  claim  by  removing  the 
top  of  a  tree  (having  a  diameter  of  not  less  than  four  inches)  not  less 
than  three  feet  above  the  ground,  and  blazing  and  marking  the  same,  or 
by  a  rock  in  place,  capping  such  rock  with  smaller  stones,  such  rock  and 
stones  to  have  a  height  of  not  less  than  three  feet,  or  by  setting  a  post 
or  stone  one  at  each  corner  and  one  at  the  center  of  each  side  line.  When 
a  post  is  used,  it  must  be  at  least  four  inches  in  diameter  by  four  and 
one-half  feet  in  length  set  one  foot  in  the  ground.  When  it  is  prac- 
ticably impossible,  on  account  of  bedrock  or  precipitous  ground,  to  sink 
such  posts,  they  may  be  placed  in  a  mound  of  earth  or  stones,  or  where 
the  proper  placing  of  such  posts  or  other  monuments  is  impracticable  or 
dangerous  to  life  or  limb,  it  shall  be  lawful  to  place  such  posts  or  monu- 
ments at  the  nearest  point  properly  marked  to  designate  its  right  place. 

When  a  stone  is  used  (not  a  rock  in  place)  it  must  be  not  less  than  six 
inches  in  diameter  and  eighteen  inches  in  length  set  two-thirds  of  its 
length  in  the  top  of  a  mound  of  earth  or  stone,  four  feet  in  diameter 
and  two  and  one-half  feet  in  height.  All  trees,  posts  or  rocks  used  as 
monuments,  when  not  four  feet  in  diameter  at  the  base,  shall  be  sur- 
rounded by  a  mound  of  earth  or  stone  four  feet  in  diameter  by  two 
feet  in  height,  which  trees,  posts,  stones  or  rock  monuments  must  be  so 
marked  as  to  designate  the  corners  of  the  claim  located. 

TIME  TO  BOUND,  SINK  AND  RECORD. 

Provided,  however,  that  the  locator  of  a  mining  claim  shall  within 
twenty  days  from  the  date  of  posting  the  notice  of  location  define  the 
boundaries  of  said  claim  by  placing  at  each  corner  and  at  the  center  of 
each  side  line  one  of  the  hereinbefore  described  monuments,  and  shall 
within  ninety  days  of  the  date  of  posting  said  location  notice  perform 
the  location  work  hereinbefore  prescribed. — Eev.  Laws  of  1912,  Sec.  2-iZS. 

LOCATION  CERTIFICATE. 

Sec.  3.  Any  locator  or  locators  of  a  mining  claim,  after  having 
established  the  boundaries  of  said  claims,  and  after  having  complied  with 
the  provisions  of  this  Act  with  reference  to  the  establishment  of  such 


STATUTOKY  REQUIREMENTS.  77 

boundaries,  may  file  with  the  District  Mining  Recorder  a  notice  of  loca- 
tion, setting  forth  the  name  given  to  the  lode  or  vein,  the  number  of 
linear  feet  claimed  in  length  along  the  course  of  the  vein,  the  date  of 
location,  the  date  on  which  the  boundaries  of  the  claim  were  completed, 
and  the  name  of  the  locator  or  locators. 

DISTRICT  AND  COUNTY  RECORD. 

Should  any  claim  be  located  in  any  section  or  territory  where  no  dis- 
trict has  been  as  yet  formed,  or  where  there  is  no  District  Recorder,  the 
locator  or  locators  of  such  claims  may  file  with  the  County  Recorder, 
notice  of  location  as  set  forth  above,  and  said  notice  of  location  will  be 
prima  facie  evidence  in  all  courts  of  justice  of  the  first  location  of  said 
lode  or  vein. 

Within  ninety  days  of  the  date  of  posting  the  location  notice  upon 
the  claim  the  locator  shall  record  his  claim  with  the  Mining  District 
Recorder  and  the  County  Recorder  of  the  mining  district  or  county  in 
which  such  claim  is  situated  by  location  certificate  which  must  contain: 

First — The  name  of  the  lode  or  vein; 

Second — The  name  of  the  locator  or  locators; 

Third — The  date  of  the  location  and  such  description  of  the  location 
of  said  claim,  with  reference  to  some  natural  object  or  permanent  monu- 
ment as  will  identify  the  claim. 

Fourth — The  number  of  linear  feet  claimed  in  length  along  the  course 
of  the  vein  each  way  from  the  point  of  discovery,  with  Ihe  width  on  each 
side  of  the  center  of  the  vein,  and  the  general  course  of  the  lode  or  vein 
as  near  as  may  be ; 

Fifth — The  dimensions  and  location  of  the  discovery  shaft  or  its 
equivalent,  sunk  upon  the  claim; 

Sixth — The  location  and  description  of  each  corner,  with  the  markings 
thereon. 

Any  record  of  the  location  of  a  lode  mining  claim  which 
shall  not  contain  all  the  requirements  named  in  this  section 
shall  be  void. 

PRIOR  RECORDS. 

All  records  of  lode  or  placer  mining  claims,  mill  sites  or  tunnel  rights 
heretofore  made  by  any  Recorder  of  any  mining  district  or  any  County 
Recorder  are  hereby  declared  to  be  valid  and  to  have  the  same  force  and 
effect  as  records  made  in  pursuance  of  the  provisions  of  this  Act.  And 
any  such  record,  or  a  copy  thereof  duly  verified  by  a  Mining  Recorder 
or  duly  certified  by  a  County  Recorder  shall  be  prima  facie  evidence  of 
the  facts  therein  stated. — Rev.  Laws  of  1912,  Sec.  2424. 


78  STATUTORY  REQUIREMENTS. 

New  Mexico. 

1.  Post  in  some  conspicuous  place  on  location  a  notice  in  writing  stat- 
ing thereon  the  name  of  the  locator,  his  intention  to  locate  the  claim,  and 
a  description  of  the  claim,  by  reference  to  natural  object  or  permanent 
monument. 

2.  Within   ninety   days   from   date   of   taking   possession  sink  a   dis- 
covery shaft  to  a  depth  of  at  least  ten  feet  from  the  lowest  part  of  the 
rim,  exposing  mineral  in  place. 

3.  Mark  surface  boundaries  by  four  substantial  posts  or  monuments 
one  at  each  corner  of  the  claim  so  as  to  distinctly  mark  the  claim  on  the 
ground  so  that  its  boundaries  can  be  readily  traced. 

4.  The  disclosure  of  a  lode  in  an  open  cut,  cross-cut,  or  tunnel  at  the 
depth  of  ten  feet  below  the  surface,  or  an  adit  at  least  ten  feet  in  along 
the  lode,  suffices  instead  of  the  ten-foot  shaft. 

5.  Within  three  months  after  posting  notice  record  a  copy  of  such 
location  notice  in  the  office  of  the  Recorder  of  the  County. 

North  Dakota. 

LOCATION  CERTIFICATE. 

1.  The  discoverer  of  a  lode  shall  within  sixty  days  from  the  date  of 
discovery  record  his  claim  in  the  office  of  the  register  of  deeds  of  the 
county  in  which  such  lode  is  situated  by  a  location  certificate,  which  shall 
contain : 

First — The  name  of  the  lode;        « 

Second — The  name  of  the  locator; 

Third — The  date  of  the  location; 

Fourth — The  number  of  feet  in  length  claimed  on  each  side  of  the 
discovery  shaft; 

Fifth — The  number  of  feet  in  width  claimed  on  each  side  of  the  \jin 
or  lode; 

Sixth — The  general  course  of  the  lode,  as  near  as  may  be. — Sev.  Code, 
Sec,  1802. 

DISCOVERY  SHAFT.    NOTICE.    MARKING  BOUNDARIES. 

2.  Before  filing  such  location  certificate  the  discoverer  shall: 

First — Locate  his  claim  by  first  sinking  a  discovery  shaft  thereon 
sufficient  to  show  a  well-defined  mineral  vein  or  lode; 

Second — By  posting  at  the  point  of  discovery  on  the  surface,  a  plain 
sign  or  notice  containing  the  name  of  the  lode,  the  name  of  the  locator 


STATUTORY  REQUIREMENTS.  79 

ami  the  date  of  discovery,  the  number  of  feet  claimed  in  length  on 
either  side  of  the  discovery  and  the  number  of  feet  in  width  claimed  on 
each  side  of  the  lode; 

Third — By  marking  the  surface  boundaries  of  the  same. — Rev.  Code, 
Sec.  1804. 

EIGHT  POSTS. 

3.  Such  surface  boundaries  shall  be  marked  by  eight  substantial  posts, 
hewed  or  blazed  on  the  side  facing  the  claim  and  plainly  marked  with 
the  name  of  the  lode  and  the  corner,  end,  or  side  of  the  claim  that  they 
respectively  represent,  and  sunk  in  the  ground  as  follows:     One  at  the 
corner  and  one  at  the  center  of  each  side-line  and  one  at  each  end  of 
the  lode.     When  it  is  impracticable  on  account  of  rock  or  precipitous 
ground  to  sink  such  posts,  they  may  be  placed  in  a  monument  of  stone. — 
Eev.  Code,  Sec.  1805. 

CUTS  AND  TUNNEL  DISCOVERIES. 

4.  Any  open  cut,  cross-cut  or  tunnel  at  a  depth  sufficient  to  disclose 
the  mineral  vein  or  lode,  or  an  adit  of  at  least  ten  feet  in  along  the  lode 
from  the  point  where  the  lode  may  be  in  any  manner  discovered,  shall  be 
equivalent  to  a  discovery  shaft. — Eev.  Code,  Sec.  1806. 

SIXTY  DAYS  TO  SINK. 

5.  The  discoverer  shall  have  sixty  days  from  the  time  of  uncovering  or 
disclosing  a  lode  in  which  to  sink  a  discovery  shaft  thereon. — Eev.  Code, 
Sec.  1807. 

Oregon. 

1.  To  post  notice  containing  name  of  lode,  name  of  locator,  date  of 
location,  number  of  feet  in  length  claimed  each  way  from  discovery, 
width  on  each  side  of  lode  and  "the  general  course  or  strike  of  the  vein 
or  lode  as  nearly  as  may  be,  with  reference  to  some  natural  object  or 
permanent  monument  in  the  vicinity  thereof." 

2.  Within  sixty  days  from  date  of  posting  to  sink  discovery  shaft 
at  least  ten  feet  deep  from  lowest  part  of  rim,  or  deeper,  if  necessary,  to 
show  lode  or  deposit  in  place. 

3.  Within  thirty  days  after  posting  mark  boundaries  by  six  posts  or 
mounds   of  stone,  or  earth  and  stone,  one  at  each  corner  and  one  at 
center  ends  of  claim;  posts  three  feet  above  ground,  four  inches  square 
or  diameter;  mounds  two  feet  high. 


80  STATUTORY  REQUIREMENTS. 

4.  A  cut  or  crosscut  or  tunnel  which  cuts  the  lode  at  a  depth  of  ton 
feet,  or  an  open  cut  at  least  six  feet  deep,  four  feet  wide,  and  ten  i'cet 
in  length  along  the  lode  from  the  point  where  the  same  may  be  in  any 
manner  discovered,  is  equivalent  to  such  discovery  shaft. 

5.  Within  sixty  days  after  date  of  posting,  record  with  Recorder  of 
Conveyances,  if  there  be  one,  otherwise  with  Clerk  of  County,  a  copy 
of  the  notice  posted  attaching  thereto  an  affidavit  showing  that  required 
location  work  was  performed. 

6.  By  Act  of  1905,  Chap.  142,  it  was  provided  that  an  amended  notice 
of  location  may  be  posted  at  any  time,  "which  shall  relate  back  to  the 
date  of  the  original  location,"  with  a  proviso,  saving  intervening  rights. 

By  Sec.  3974  Ballinger's  Code,  only  one  claim  by  location  may  be 
held  upon  each  lead  or  vein,  by  the  same  person;  the  discoverer  of  any 
new  lead  or  vein,  not  previously  located  upon,  is  allowed  one  additional 
claim. 

South  Dakota. 

1.  To  post  at  the  point  of  discovery,  on  the  surface,  a  notice  con- 
taining the  name  of  the  lode,  the  name  of  the  locator  and  the  date  of 
discovery,  the  number  of  feet  claimed  in  length  on  either  side  of  the 
discovery,  and  the  number  of  feet  claimed  in  width  on  each  side  of 
the  lode. 

2.  Before  filing  location  certificate  sink  shaft  sufficient  to  show  a  well 
defined  mineral  vein  or  lode,  and  not  less  than  ten  feet  in  depth  on  the 
lower  side. 

3.  MARKING  BOUNDARIES. — "Such  surface  boundaries  shall  be  marked 
by  eight  substantial  posts,  hewed  or  blazed  on  the  side  or  sides  facing  the 
claim  and  plainly  marked  with  the  name  of  the  lode  and  the  corner,  end, 
or  side  of  the  claim  that  they  respectively  represent,  and  sunk  in  the 
ground,  to-wit:    One  at  each  corner  and  one  at  the  center  of  each  side 
line,  and  one  at  each  end  of  the  lode." 

4.  The  disclosure  of  a  lode  in  an  open  cut,  crosscut,  or  tunnel  at  the 
depth  of  ten  feet  below  the  surface,  or  an  adit  at  least  ten  feet  in  along 
the  lode,  suiBces  instead  of  the  ten-foot  shaft. 

5.  Within  sixty  days  from  the  date  of  discovery,  record  in  the  office 
of  the  Register  of  Deeds  a  location  certificate  which  shall  contain: 

First — The  name  of  the  lode; 
Second — The  name  of  the  locator  or  locators; 
Third — The  date  of  location; 

Fourth — The  number  of  feet  in  length  claimed  on  each  side  of  the 
discovery  shaft; 


STATUTORY  REQUIREMENTS.  81 

Fifth — The  number  of  feet  in  width  claimed  on  each  side  of  the  vein 
or  lode; 

Sixth — The  general  course  of  the  lode,  as  near  as  may  be. 

6.  When  a  location  certificate  is  so  filed  the  Register  of  Deeds  is  re- 
quired to  furnish  to  the  locator  a  certificate  giving  the  name  of  the 
location,  the  name  of  the  locator  or  locators,  the  date  of  the  filing,  and 
the  book  and  page  where  recorded,  which  certificate  shall  be  delivered  to 
the  locator  or  locators,  who  shall  post  the  same  or  a  copy  thereof  on  the 
said  claim  on  the  same  post  or  tree  where  the  original  notice  is  posted 
and  in  a  conspicuous  place. 

7.  The  Register  of  Deeds  makes  a  notation  on  the  margin  of  the 
record,  giving  the  date  of  the  delivery  of  such  certificate,  which  notation 
is  made  prima  facie  evidence  of  the  delivery  and  posting  of  the  certificate. 

Utah. 

1.  At   the   time   of  making   discovery   erect   a  monument   and   place 
thereon  a  notice  containing  name  of  lode,  name  of  locator,  date  of  loca- 
tion, length  each  way  from  discovery,  width  on  each  side  of  the  center 
of  the  vein,  general  course  of  lode  and  description  with  reference  to 
natural  object  or  permanent  monument. 

2.  There  is  no  statutory  requirement  of  a  discovery  shaft  or  cut  of 
any  specific  dimensions  but  they  may  be  required  by  district  rules. 

3.  Claims    must    be    distinctly    marked    on    the    ground    so    that    the 
boundaries  can  be  readily  traced.     Details  of  marking  left  to  District 
Rules. 

4.  Within  thirty  days  from  date  of  posting  the  location  notice,  file 
for  record  in  the  office  of  County  Recorder,  if  claim  be  situate  without 
and  beyond  an  original  mining  district,  a  substantial  copy  of  the  notice 
of  location. 

5.  Where  a  mining  district  exists  an  original  and  duplicate  copy  of 
the  notice  of  location  are  filed  with  the  District  Recorder,  which  duplicate 
the  District  Recorder  sends  to  the  County  Recorder  to  be  by  him  recorded. 

NOTE. — The  Acts  of  1899,  page  26,  allow  districts  to  be  organized,  but 
provide  that  the  nearest  boundary  line  of  district  shall  not  be  within 
ten  miles  of  the  office  of  any  County  Recorder. 

Washington. 

LOCATION  NOTICE. 

1.  Post  at  the  point  of  discovery,  on  the  surface,  a  notice  containing 
the  name  of  the  lode,  the  name  of  the  locator  and  the  date  of  discovery. 


82  STATUTORY  REQUIREMENTS. 

TEN-FOOT  SHAFT. 

2.  Within  ninety  days  from  date  of  discovery  sink  shaft  ten  feet  deep 
from  the  lowest  part  of  the  rim.     This  requirement  of  shaft  does  not 
apply  to  any  mining  claim  located  west  of  the  summit  of  the  Cascade 
mountains. 

STAKES.    BLAZING. 

3.  Within  ninety  days  mark  boundaries  by  substantial  posts  or  stone 
monuments,  bearing  name  of  lode  and  date  of  location  at  each  corner 
of  claim.    Posts  and  monuments  not  less  than  three  feet  high;  posts  not 
less  than  four  inches  in  diameter,  set  in  the  ground  in  a  substantial  man- 
ner.    Brush  must  be  cut  away  and  trees  must  be  blazed  along  lines  of 
claim. 

OPEN  CUTS. 

4.  Any  open  cut  or  tunnel  having  a  length  of  ten  feet,  which  shall 
cut  a  lode  at  the  depth  of  ten  feet  below  the  surface,  shall  hold  such  lode 
the  same  as  if  a  discovery  shaft  were  sunk  thereon,  and  shall  be  equiva- 
lent thereto. 

RECORD. 

5.  The  discoverer  of  a  lode  shall,  within  ninety  days  from  the  date  of 
discovery,  record  in  the  office  of  the  auditor  of  the  county  in  which  such 
lode  is  found,  a  notice  containing  the  name  or  names  of  the  locators,  the 
date  of  the  location,  the  number  of  feet  in  length  claimed  on  each  side 
of  the  discovery,  the  general  course  of  the  lode,  and  such  a  description 
of  the  claim  or  claims  located  by  reference  to  some  natural  object  or 
permanent  monument  as  will  identify  the  claim. 

Wyoming. 

SIXTY  DAYS  FOR  DISCOVERY  SHAFT. 

1.  The  discoverer  of  any  mineral  lode  or  vein  in  this  state  shall  have 
the  period  of  sixty  days  from  the  date  of  discovering  such  lode,  or  vein, 
in  which  to  sink  a  discovery  shaft  thereon. — Eev.  St.,  Sec.  2550. 

DETAILS  OF  LOCATION. 

2.  Before  the  filing  of  a  location  certificate  in  the  office  of  the  county 
clerk  and  ex  officio  register  of  deeds,  the  discoverer  of  any  lode,  vein,  or 
fissure,  shall  designate  the  location  thereof  as  follows: 


STATUTORY  REQUIREMENTS.  83 

First — By  sinking  a  shaft  upon  the  discovery  lode  or  fis'sure  to  the 
depth  of  ten  feet  from  the  lowest  part  of  the  rim  of  such  shaft  at  the 
surface ; 

Second — By  posting  at  the  point  of  discovery,  on  the  surface,  a  plain 
sign  or  notice,  containing  the  name  of  the  lode  or  claim,  the  name  of  the 
discoverer,  and  locator,  and  date  of  such  discovery; 

Third — By  marking  the  surface  boundaries  of  the  claim,  which  shall 
be  marked  by  six  substantial  monuments  of  stone  or  posts  hewed  or 
marked  on  the  side  or  sides  which  face  in  toward  the  claim,  and  sunk 
in  the  ground,  one  at  each  corner,  and  one  at  the  center  of  each  aide 
line.— Rev.  St.  2548. 

The  claim  must  disclose  mineral  bearing  rock  in  place. 

OPEN  CUTS. 

3.  Any  open  cut  which  shall  cut  the  vein  ten  feet  in  length  and  with 
face  ten  feet  in  height,  or  any  crosscut  tunnel,  or  tunnel  on  the  vein  ten 
feet  in  length  which   shall   cut  the  vein   ten   feet   below   the   surface, 
measured  from  the  bottom  of  such  tunnel,  shall  hold  such  lode  the  same 
as  if  a  discovery  shaft  were  sunk  thereon. — Eev.  St.,  Sec.  2549. 

LOCATION  CERTIFICATE.  RECORD. 

4.  A  discoverer  of  any  mineral  lead,  lode,  ledge,  or  vein  shall,  within 
sixty  days  from  date  of  discovery,  cause  such  claim  to  be  recorded  in 
the   office  of  the  county  clerk  and   ex-offlcio   register   of   deeds   of   the 
county  within  which  such  claim  may  exist,  by  a  location  certificate  which 
shall  contain  the  following  facts: 

First — The  name  of  the  lode  claim; 

Second — The  name  or  names  of  the  locator  or  locators; 

Third — The  date  of  location; 

Fourth — The  length  of  the  claim  along  the  vein  measured  each  way 
from  the  center  of  the  discovery  shaft  and  the  general  course  of  the 
vein,  as  far  as  it  is  known; 

Fifth — The  amount  of  surface  ground  claimed  on  either  side  of  the 
center  of  the  discovery  shaft  or  discovery  workings; 

Sixth — A  description  of  the  claim  by  such  designation  of  natural  or 
fixed  objects,  or  if  upon  ground  surveyed  by  the  United  States  system 
of  land  surveys,  by  reference  to  section  or  quarter-section  corners,  as 
shall  identify  the  claim  beyond  question. — Eev.  St.,  Sec.  2546. 

The  discovery  shaft  must  be  "always  equally  distant  from  the  side 
lines  of  claim." 
\ 


84  BECOED. 

RECORD. 

Essentials  of  Location  Certificate. 

E.  S.  Sec.  2324. — *  *  *  All  records  of  mining  claims  hereafter  made 
shall  contain  the  name  or  names  of  the  locators,  the  date  of  the  location, 
and  such  a  description  of  the  claim  or  claims  located  by  reference  to  some 
natural  object  or  permanent  monument  as  will  identify  the  claim.  *  *  * 
—Sec.  5,  A.  C.  May  10,  1872. 

Colorado  Statute — Time  to  File. 

E.  S.  Colo.  Sec.  4194. — The  discoverer  of  a  lode  shall,  within  three 
months  from  the  date  of  discovery,  record  his  claim  in  the  office  of  thi 
recorder  of  the  county  in  which  such  lode  is  situated,  by  a  location  cer- 
tificate which  shall  contain: 

First — The  name  of  the  lode; 

Second — The  name  of  the  locator; 

Third — The  date  of  location; 

Fourth — The  number  of  feet  in  length  claimed  on  each  side  of  the 
center  of  discovery  shaft; 

Fifth — The  general  course  of  the  lode  as  near  as  may  be. — Feb.  IS, 
1874. 

Indefinite  Record  Void. 

E.  S.  Colo.  Sec.  4195. — Any  location  certificate  of  a  lode  claim  which 
shall  not  contain  the  name  of  the  lode,  the  name  of  the  locator,  the  date 
of  location,  the  number  of  lineal  feet  claimed  on  each  side  of  the  dis- 
covery shaft,  the  general  course  of  the  lode,  and  such  description  as  shall 
identify  the  claim  with  reasonable  certainty,  shall  be  void. — Id. 

Separate  Record  of  Each  Claim. 

E.  S.  Colo.  Sec.  4196. — No  location  certificate  shall  claim  more  than 
one  location,  whether  the  location  be  made  by  one  or  several  locators. 
And  if  it  purport  to  claim  more  than  one  location  it  shall  be  absolutely 
void,  except  as  to  the  first  location  therein  described,  and  if  they  are 
described  together,  or  so  that  it  can  not  be  told  which  location  is  first 
described,  the  certificate  shall  be  void  as  to  all. — Id. 

The  Statutory  Requirements  Essential 

to  a  location  certificate  stated  in  section  4194  above  printed 
are  followed  by  similar  but  not  identical  statutes  in  all  the 


EECOED.  85 

mining  States  and  Alaska.  The  statutory  requirements  in 
the  several  States,  in  addition  to  those  above  noted,  are  tabu- 
lated, page  68. 

"Where  no  statutory  requirements  other  than  the  Federal 
Statute  exist,  a  certificate  following  the  form  below  given 
(page  90)  would  in  any  State  or  Territory  fully  comply 
Avith  the  requirements  of  the  law. 

The  Nevada  Statute  requiring  the  distance  each  side  of  the 
discovery  and  the  general  course  of  the  vein  to  be  stated  in 
the  location  certificate  was  held  merely  directory  in  Zerres 
v.  Vanina,  134  F.  616. 

So  far  as  such  Statutes  require  a  discovery  shaft  of  certain 
depth  or  any  other  item  of  location  or  record  in  itself  mate- 
rial, they  are  only  reasonable  and  have  uniformly  been  held 
mandatory ;  but  oppressive  and  trifling  details,  such  as  imposed 
by  the  1907  mining  act  of  Nevada,  and  the  1895  act  of  Mon- 
tana (materially  amended  for  the  better  in  1907)  requiring 
"a  description  of  each  corner"  and  the  "dimensions"  of  the 
discovery  shaft,  ought  to  be  held  directory  only  and  non- 
compliance  not  fatal,  as  was  ruled  concerning  the  requirement 
that  the  record  give  the  length  each  side  of  the  discovery  and 
the  general  course  of  the  vein,  in  Zerres  v.  Vanina,  supra. 

The  Montana  act  of  1895  above  cited  was  held  mandatory 
and  the  attempted  compliance  fatally  defective  in  Purdum  v. 
Laddin,  23  Mont.  387,  59  P.  153,  and  in  Hahn  v.  James,  29 
Mont.  1,  73  P.  965,  but  the  description  in  Walker  v.  Penning- 
ton,  27  Mont.  369,  71  P.  156,  and  in  Butte  Co.  v.  Radmilovich, 
39  Mont.  157,  101  P.  1078,  was  sustained.  As  to  these  cases 
see  Clark  Montana  Co.  v.  Butte  Co.  as  cited  on  p.  11. 

The  declaratory  statement  in  that  State  need  not  describe 
the  claim  by  metes  and  bounds.  Tiggeman  v.  Hrzlak,  40  Mont. 
19,  105  P.  77. 

Necessity  for  Record. 

It  is  conceded  that  the  Federal  Statute  does  not  in  terms 
require  a  record  to  be  made. — Southern  Cross  Co.  v.  Europa 


86  RECORD. 

Co.,  15  Nev.  383,  9  M.  B.  513 ;  Haws  v.  Victoria  Co.,  160  U.  S. 
318,  40  L.  Ed.  436,  16  Sup.  Ct.  Rep.  282.  And  although  before 
the  mining  acts  a  record  in  some  form  was  almost  universally 
required,  and  although  either  in  terms,  or  assumedly,  required 
in  every  State,  yet  it  seems  that  the  necessity  for  a  record  must 
be  created  by  Statute  or  District  rule. 

On  these  grounds  there  have  been  three  decisions  on  the 
construction  of  the  Nevada  law,  holding  in  terms  that  record 
was  not  mandatorily  imposed  by  the  mining  act  of  that  State. 
In  Zerres  v.  Vanina,  134  F.  610,  it  was  held  that  failure  to 
record  either  within  the  time  mentioned  in  the  statute  or 
at  any  time,  did  not  avoid  a  discovery  made  complete  by 
discovery  shaft,  notice  and  staking. 

In  Ford  v.  Campbell,  29  Nev.  578,  92  P.  206,  the  Statute  is 
considered  more  fully  with  the  holding  that  a  record  in 
Nevada  if  made  at  all  must  be  with  both  District  and  County 
Recorder.  But  that  the  intent  of  the  Statute  was  merely  to 
give  the  locator  the  benefit  of  a  means  of  making  prima  facie 
proof  of  discovery  and  location  by  production  of  the  record 
and  not  to  defeat  the  location  for  want  of  a  record ;  and  that 
the  first  location,  having  a  record  in  only  one  office,  and  its 
description  further  being  fatally  defective,  was  nevertheless 
a  good  and  permanent  location  without  any  record  at  all. 
Cited  and  followed  in  Indiana  Co.  v.  Gold  Hills  Co.  which  adds 
that  the  failure  to  record  only  shifts  the  burden  of  proof.  35 
Nev.  158,  126  P.  965 ;  Wailes  v.  Davies,  158  F.  667. 

Close  as  the  question  may  be  this  construction  is  defensible 
and  affords  an  escape  from  defeat  of  priority  by  failure 
to  comply  with  the  burdensome  and  almost  impossible  details 
required  to  show  in  the  record,  under  the  act  construed  by 
these  decisions,  and  the  even  more  indefensible  act  in  these 
particulars  of  1907,  the  wording  of  which  on  the  point  of 
necessity  of  record  is  the  same  as  that  of  the  old  act. 

It  has  been  decided  (Ross,  J.,  dissenting)  that  the  Alaska 
Act,  providing  for  the  record  of  mining  claims  Within  90  days 
from  discovery,  is  permissive  only  and  failure  to  record  does 


BECOED.  87 

not  forfeit  the  claim.— Sturtevant  v.  Vogel,  167  F.  449,  93 
C.  C.  A.  84. 

The  Time  to  Record  the  Location  Certificate  Is  Fixed 

by  statute  in  Colorado  within  3  months;  North  and  South 
Dakota  and  Wyoming,  60  days;  Alaska  and  Washington,  90 
days  from  date  of  discovery. 

California  and  Utah  within  30  days  after  date  of  posting. 
Montana  and  Oregon  60  days  from  such  date.  Nevada  90 
days  from  date  of  posting.  New  Mexico  three  months  from 
such  date.  Arizona  and  Idaho  within  ninety  days  from  date 
of  "location." 

For  proper  office  or  offices  in  which  to  file  the  location  cer- 
tificate, see  STATUTORY  REQUIREMENTS  tabulated  on  page  68. 

Where  there  is  no  organized  mining  district,  and  there- 
fore no  district  recorder,  the  certificate  should  always  be 
filed  with  the  county  recorder. 

Recording  Location  Notice  as  Certificate. 

It  is  the  statutory  regulation  in  California,  Idaho,  Ari- 
zona, Utah,  Oregon  and  New  Mexico,  and  the  custom  in  many 
mining  districts  to  make  the  location  notice  in  duplicate, 
placing  one  on  the  claim  and  filing  the  other  for  record. 
The  location  certificate,  or  record,  everywhere,  must  contain 
all  that  is  required  of  the  notice  besides  giving  a  full  descrip- 
tion which  is  not  required  of  the  notice.  If,  therefore,  the 
custom  be  to  make  these  instruments  duplicate,  each  must 
contain  what  is  required  of  the  greater  and  both  would  have 
to  contain  a  /ull  description  with  reference  to  monuments,  to 
conform  to  the  Act  of  Congress.  If  not  exact  duplicates  it 
is  not  fatal.— Gird  v.  California  Co.,  60  F.  531,  18  M.  R.  45. 

Description  in  Location  Notice. 

Unless  expressly  required  by  Statute  or  district  rule,  and 
barring  the  above  noted  exception  as  to  States  where  the 
record  is  a  duplicate  of  the  posted  notice,  the  location  notice 


88  RECORD. 

is  not  supposed  to  call  for  any  tie  or  to  contain  a  description 
of  the  claim.— Poujade  v.  Ryan,  21  Nev.  449,  33  P.  659; 
Souter  v.  Maguire,  78  Cal.  543,  21  P.  183. 

Only  the  items  specifically  commanded  for  it  to  contain  are 
material  and  the  additional  facts  so  often  recited  in  such 
notices  are  harmless  surplusage. 

Filing  far  Record  Is  Equivalent  to  Record, 

and  subsequent  errors  or  neglect  of  the  officer  can  not  preju- 
dice the  locator.— W eese  v.  Barker,  1  Colo.  178,  2  P.  919; 
Shepard'v.  Murphy,  26  Colo.  350,  58  P.  588. 

The  Record  Follows  the  Location, 

as  the  location  follows  the  discovery.  The  record  is  a  publi- 
cation of  the  location,  and  is  therefore  called  the  location 
certificate.  Many  of  the  old  forms  of  these  certificates  are 
not  sufficiently  specific  and  the  Surveyor-General  in  such 
cases  requires  a  new  record  to  be  made  before  issuing  order 
of  survey  upon  application  for  patent. 

The  Certificate  As  Proof  of  the  Acts  of  Location. 

See  EJECTMENT,  p.  443. 


EECORD. 


1  t/orlh  Center  State  \ 

\ 

VJ 

./  South  Center  State 

1 

1 

90  KECORD. 

Description  of  Claim — Ties. 

The  record  contains  a  description  of  the  claim  as  staked  on 
the  ground.  If  not  properly  staked  the  record  does  not  make 
a  good  location;  but  if  the  location  has  been  properly  made, 
the  certificate  can  readily  be  written  so  as  to  describe  it 
fully,  whether  staked  by  a  surveyor  or  otherwise.  The  essen- 
tials of  a  valid  location  certificate  are  stated  concisely  in 
sections  4194,  4195  and  4196,  above  printed,  and  a  form  is 
given  below. 

The  discovery  shaft  should  always  be  treated  as  an  essen- 
tial point  of  description  and  tied  to  some  near  and  prominent 
monument,  with  course  and  distance  therefrom,  because  it  is  a 
much  more  permanent  monument  than  any  stake  or  corner. 

In  addition,  one  or  more  corners  should  be  tied  to  other  nat- 
ural objects  or  permanent  monuments,  a  government  corner 
or  discovery  shaft  of  an  approved  survey  being  unobjec- 
tionable. 

The  text  of  the  A.  C.,  however,  is  complied  with  by  the 
use  of  only  a  single  tie,  as  the  words  "natural  object  or 
permanent  monument"  are  used  in  the  singular  form. 

FORM   OF   LOCATION    CERTIFICATE. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  I,  John  A.  McMurtne.  of 
the  City  and  County  of  Denver,  State  of  Colorado,  claim  by  right  of 
discovery  and  location,  fifteen  hundred  feet,  linear  and  horizontal  mea- 
surement, on  the  CARDINAL  LODE,  along  the  vein  thereof,  with  all  its  dips, 
variations  and  angles;  together  with  three  hundred  feet  in  width  on  each 
side  of  the  middle  of  said  vein  at  the  surface ;  and  all  veins,  lodes,  ledges, 
deposits  and  surface  ground  within  the  lines  of  said  claim ;  seven  hundred 
and  fifty  feet  on  said  lode  running  north  88  degrees  east  from  the  center 
of  the  discovery  shaft,  and  seven  hundred  and  fifty  feet  running  south  88 
degrees  west  from  said  center  of  discovery  shaft. 

Said  claim  is  situate  on  the  eastern  slope  of  Bull  Hill  in  Cripple  Creek 
Mining  District,  County  of  Teller,  State  of  Colorado,  and  is  bounded 
•md  described  as  follows,  to-wit: 

Beginning  at  corner  No.  1  (northwest  corner  of  claim),  from  which 
deep  shaft  of  Gibbons  Lode  bears  N.  2  degrees  E.  70  feet  and  running 
thence  S.  2  degrees  E.  600  feet  to  corner  No.  8;  thence  N.  88  degrees  E. 
750  feet  to  south-center  stalce;  thence  same  course  750  feet  to  corner 


RECORD.  91 

No.  3;  thence  N.  S  degrees  W.  600  feet  to  corner  No.  4  (northeast  cor- 
ner), from  which  biased  pine  tree  #  feet  in  diameter  marked  "F,"  bears 
N.  8  degrees  W.  22  feet;  thence  south  88  degrees  W.  750  feet  to  north- 
center  stake,  and  thence  same  course  750  feet  to  the  place  of  beginning. 

From  discovery  shaft,  corner  No.  2,  of  Farley  Lode,  survey  lot  No. 
787,  lears  S.  45  degrees  E.  350  feet,  and  discovery  shaft  of  Wiseman 
Lode  bears  S.  45  degrees  W.  375  feet. 

Date  of  discovery,  January  3,  1916.  Staked  and  located  February  4, 
1916.  Date  of  certificate,  February  5,  1916.  JOHN  A.  McMuRTRiE. 

The  above  form  corresponds  in  ties  and  courses  to  the  dia- 
gram on  page  89. 

Descriptive  Defects  in  Location  Certificate. 

In  addition  to  the  cases  cited  on  page  58,  under  "LOCA- 
TION," there  are  certain  other  decisions  in  particular  requir- 
ing mention  because  of  their  tendency  to  condone  very  vague 
records. 

The  most  material  of  these  cases,  because  decided  by  the 
Court  of  highest  authority,  is  that  of  Hammer  v.  Gar  field 
Co.,  130  U.  S.  291,  32  L.  Ed.  964,  9  Sup.  Ct.  Rep.  548,  16 
M.  R.  125.  There,  the  opinion,  after  stating  that  "a  refer- 
ence to  some  natural  object  or  permanent  monument"  is 
required,  says:  "Of  course  the  section  means  when  such 
reference  can  be  made."  And  it  then  proceeds  to  uphold 
a  record  whose  only  call  or  tie  was  "about  fifteen  hundred 
feet  south  of  Vaughn's  Little  Jennie  Mine."  The  opinion 
further  treats  the  claim's  own  stakes  as  sufficient  monuments, 
It  was  with  reference  to  this  case  that  HALLETT  J.  on  objec- 
tion being  made  in  the  Circuit  Court  to  an  indefinite  record, 
overruled  the  objection  with  the  observation:  "The  Supreme 
Court  has  repealed  the  Statute  on  this  point." 

In  Gamer  v.  Glenn,  8- Mont.  371,  20  P.  654,  a  "large 
bowlder  at  the  west  end  of  the  Tim  lode"  was  the  starting 
point.  This  was  the  only  monument.  Adjoiners  were  named, 
but  it  was  proved  that  no  such  claim  as  the  "Tim"  was 
known  or  existed.  The  record  was  maintained.  The  test 
applied  in  this  case  was  a  fair  and  reasonable  one  in  its 


92  RECORD. 

terms,  to  wit:  it  must  be  a  description  which  would  enable 
a  person  of  reasonable  intelligence  to  find  the  claim  and 
trace  its  boundaries.  Cited  and  followed  on  very  similar 
record  in  Bramlett  v.  Flick,  23  Mont.  95,  57  P.  869,  871,  20 
M.  R.  103. 

Hansen  v.  Fletcher,  10  Utah  266,  37  P.  480,  decided  in 
terms  that  the  claim's  own  corners  were  sufficient  monuments 
within  the  Act,  treating  them  as  a  complete  description  with- 
out even  referring  to  the  attempted  tie  to  another  mine  about 
a  mile  distant.  An  equally  vague  description  was  upheld  on 
the  same  lines  in  Credo  Co.  v.  Highland  Co'.,  95  F.  911.  Both 
these  decisions  cite  and  follow  the  Garfield  case,  supra;  Farm- 
ington  Co.  v.  Bhymney  Co.  20  Utah  363,  77  Am.  St.  Rep.  913, 
58  P.  832. 

The  Statute  requires  the  location  to  be  "marked  on  the 
ground"  and  also  a  "description  by  reference."  This  means 
and  had  always  been  considered  to  mean  a  reference  to  an 
object  or  monument  distinct  from  its  own  stakes  or  corners, 
but  the  above  citations  go  far  towards  maintaining  any  rec- 
ord which  bounds  itself  by  calling  from  corner  to  corner. 

In  Darger  v.  Le  Sieur,  8  Utah  160,  30  P.  363,  and  Brown 
v.  Levan,  4  Ida.  794,  46  P.  661,  the  location  certificates  were 
held  void  for  indefiniteness ;  while  in  Bennett  v.  Harkrader, 
158  U.  S.  443,  39  L.  Ed.  1046,  15  Sup.  Ct.  Rep.  863,  18  M.  R. 
224,  it  was  held  that  a  location  certificate  with  practically  no 
description  at  all  was  good.  This  last  case  can  not  be  safely 
depended  on  as  a  precedent  to  be  followed,  as  the  Court  pro- 
ceeded to  pass  finally  on  the  law  by  holding  that  an  Act  of 
Congress  of  1884,  23  Stat.  L.  24,  validated  all  claims  in  Alaska 
prior  to  its  date  without  regard  to  form,  if  the  claimants  were 
in  actual  possession. 

The  record  was  held  fatally  defective  for  failure  to  state  the 
length  and  width  of  the  claim  and  general  course  of  the  vein,  as 
required  by  Oregon  statute. — Sharkey  v.  Candiani,  48  Or.  112, 
7  L.  R.  A.  (N.  S.)  791,  85  P.  219.  For  failure  to  call  for 
natural  object  or  monument  in  Mutchmor  v.  McCarty,  149 
Cal.  603,  87  P.  85.  For  failure  to  give  dimensions  of  dis- 


EECORD.  93 

covery  shaft.— Helena  Co.  v.  Baggaley,  34  Mont.  464,  87  P. 
455,  and  for  failure  to  show  that  the  lode  was  cut  at  a  depth 
of  ten  feet  below  the  surface  in  Dolan  v.  Passmore,  34  Mont. 
277,  85  P.  1034.  For  failure  to  give  the  length  each  way  from 
discovery  shaft— Slothower  v.  Hunter,  15  Wyo.  189,  88  P.  36. 
Descriptions  calling  for  corner  stakes  without  meandering  the 
bounds  were  held  good  in  Bonanza  Co.  v.  Golden  Head  Co., 
29  Utah  159,  80  P.  736. 

A  description  by  the  points  of  the  mariner's  compass  was 
maintained  in  Hay  den  v.  Brown,  33  Or.  221,  53  P.  490. 

In  Bismark  Co.  v.  N.  Sunbeam  Co.,  14  Ida.  516,  95  P.  14,  is 
a  full  review  of  the  cases  on  descriptions  in  vague  location 
certificates.  The  only  description  there  was  "situated  on 
Bismark  Mountain"  with  calls  for  its  own  stakes  and  it  was 
held  sufficient. 

This  precedent  is  cited  and  followed  in  Flynn  Co.  v.  Mur- 
phy, 18  Ida.  266,  138  Am.  St.  Rep.  201,  109  P.  851,  and  the 
case  goes  fully  into  the  details  of  location  and  record  as  re- 
quired by  the  Idaho  Statute. 

Plaintiff's  declaratory  statement  was  held  sufficient  under 
the  Montana  Mining  Act,  but  that  of  defendant  was  excluded 
for  want  of  preliminary  proof  as  to  size  and  the  setting  of 
posts  in  Giberson  v.  Tuolumne  Co.,  41  Mont.  396,  109  P.  974. 

Where  the  record  called  for  a  parallelogram  1500  by  600 
feet  and  the  stakes  set  made  an  irregular  quadrilateral  several 
hundred  feet  short  on  both  side  and  end  lines  the  location 
was  held  void. — Leveridge  v.  Hennessy,  48  Mont.  58,  135 
P.  906. 

Rule  of  Construction. 

Location  certificates  are  of  a  class  to  which  a  liberal,  not 
a  technical,  rule  of  construction  will  be  applied  and  any 
language  which  will  be  fair  notice  to  subsequent  prospectors 
will  make  a  sufficient  description. — Fissure  Co.  v.  Old  Susan 
Co.,  22  Utah  438,  63  P.  587,  21  M.  R.  125;  Morrison  v.  Rpgan, 
8  Ida.  291,  67  P.  £55,  22  M.  R.  69;  Wells  v.  Davis,  22  Utah 


94  RECORD. 

322,  62  P.  3,  21  M.  E.  1;  McCann  v.  McMillan,  129  Cal.  350, 
62  P.  31,  21  M.  B.  6. 

But  where  the  State  statute  requires  a  description  more 
specific  than  that  implied  from  the  A.  C.  Sec.  2324,  such 
requirements  are  mandatory  and  a  record  calling  only  for  its 
own  corners  is  void. — Purdum  v.  Laddin,  23  Mont.  387,  59 
1  P.  153 ;  the  same  as  to  any  such  statutory  requirements  pre- 
scribing details  of  location. — Copper  Globe  Co.  v.  Allman,  23 
Utah  410,  64  P.  1020,  21  M.  E.  296. 

Tying  to  Location  Monument. 

In  Idaho  there  must  not  only  be  a  description  by  reference 
to  natural  object  or  permanent  monument,  but  such  object 
must  be  tied  both  by  course  and  distance  to  the  monument 
erected  at  the  point  of  discovery. — Clear  Water  Co.  v.  San 
Garde,  1  Ida.  106,  61  P.  137. 

Surplusage — Misdescription. 

The  addition  of  statements  not  pertinent  or  material  does 
not  vitiate  the  paper.— Preston  v.  Hunter,  67  F.  996,  15 
C.  C.  A.  148.  And  where  there  is  a  false  course  or  a  false 
tie,  but  after  discarding  the  misleading  clause  enough  re- 
mains to  fully  identify  the  claim,  the  record  is  valid.  Or  a 
mistake  in  course  or  distance  may  be  corrected  by  a  call  for  a 
monument  or  some  objective  point. — Smith  v.  Newell,  86  F. 
56.  The  fact  that  the  last  call  fails  to  close  will  not  vitiate 
a  location  certificate  otherwise  regular. — Providence  Co.  v. 
Burke,  6  Ariz.  323,  57  P.  641,  19  M.  R.  625. 

The  fact  that  failure  to  erase  two  words  in  a  printed  location 
certificate  rendered  it,  if  read  literally,  without  meaning,  will 
not  invalidate  the  instrument. — Green  v.  Gavin,  10  Cal.  App. 
330,  101  P.  931.  Clerical  mistakes  in  location  certificate  will 
be  disregarded.— Clark  v.  Mitchell,  35  Nev.  464, 130  P.  764,  134 
P.  449. 


BECOED.  95 

Variance. 

Where  there  is  a  variance  between  the  record  of  the  claim 
and  the  stakes  on  the  ground  the  locator  may  claim  accord- 
ing to  his  stakes  unless  a  subsequent  locator  has  been  mis- 
led by  such  misdescription. — Cardoner  v.  Stanley  Co.,  193  F. 
517.  And  see  Swanson  v.  Eoeninger,  25  Ida.  361,  137  P.  891. 

Parol  Proof  to  Connect  the  Paper  With  the  Thing  Described 
— Ultimate  Question  of  "Location  Proved"  for  the  Jury. 

Where  the  description  is  uncertain  by  reason  of  latent 
defects — that  is,  where  the  record  has  sufficient  calls,  but  the 
Court  can  not  tell  from  inspection  whether  such  calls  are 
natural  objects  or  permanent  monuments — if  the  paper  makes 
out  a  sufficient  description,  conditioned  that  they  be  such 
objects  or  monuments,  the  certificate  will  be  admitted,  leav- 
ing the  jury  to  decide  this  as  a  question  of  fact. — Upton  v. 
Larkin,  1  Mont.  449,  17  P.  728,  15  M.  B.  404;  O'Donnell  v. 
Glenn,  8  Mont.  248,  19  P.  302 ;  Russell  v.  Chumasero,  4  Mont. 
309,  1  P.  713,  15  M.  R.  508.  The  sufficiency  of  the  location— 
that  is,  whether  the  facts  proved  show  a  location  complying 
with  the  law  as  the  Court  gives  them  the  law — is  for  the  deci- 
sion of  the  jury.— Flavin  v.  Haltingly,  8  Mont.  242,  19  P.  384; 
Fissure  Co.  v.  Old  Susan  Co.,  22  Utah  438,  63  P.  587,  21 
M.  R.  125. 

Whether  certain  monuments  of  a  certain  size  would  mark 
the  boundaries  so  that  they  could  be  readily  traced,  is  for 
the  jury  to  say. — Taylor  v.  Middleton,  67  Gal.  656,  15  M.  R. 
284,  8  P.  594. 

The  claimant  may  by  parol  identify  the  objects  called  for 
as  permanent  monuments.— Seidler  v.  Maxfield,  5  N.  M.  197, 
20  P.  794;  Metcalf  v.  Prescott,  10  Mont.  283,  25  P.  1037,  16 
M.  R.  137.  And  a  government  corner  is  a  good  call,  although 
its  true  position  was  seriously  disputed. — Gird  v.  California 
Co.,  60  F.  531, 18  M.  R.  45. 


96  EECORD. 

A  single  tie  to  a  patent  corner  is  sufficient. — Carlin  v.  Free- 
man, 19  Colo.  App.  334,  75  P.  26.  So  is  a  tie  to  a  single  stake. 
—Mclntosh  v.  Price,  121  F.  716,  58  C.  C.  A.  136. 

The  description  of  a  placer  claim  by  its  number  as  one  of  a 
tier  of  claims  was  held  good  in  Smith  v.  Cascaden,  148  F.  792, 
78  C.  C.  A.  458. 

The  Test  of  Sufficiency. 

On  the  same  line  as  the  above  case  of  Gamer  v.  Glenn,  and 
stating  the  converse  of  the  proposition,  the  party  attacking 
the  certificate  may  show  that  a  person  could  not  find  the 
premises,  taking  the  location  certificate  for  a  guide. — Dillon  v. 
Eayliss,  11  Mont.  171,  27  P.  725;  Londonderry  Co.  v.  United 
Co.,  38  Colo.  480,  88  P.  455. 

The  A.  C.  requires  the  date  of  location  to  be  given,  but  the 
locator  is  not  estopped  to  correct  a  mistake  in  the  date. — Webb 
v.  Carlson,  148  Cal.  555,  113  Am.  St.  Rep.  305,  83  P.  998. 

Contradicting. 

A  location  certificate  regular  on  its  face  may  be  shown  by 
parol  to  be  false  in  what  it  calls  for. — Dillon  v.  Bayliss,  11 
Mont.  171,  27  P.  725.  Its  recited  dates  may  be  proved  not 
true.— Muldoon  v.  Brown,  21  Utah  121,  20  M.  R.  269,  59  P. 
720.  The  same  case  holds  that  the  misdating  must  be  pleaded. 
But  that  is  not  only  to  require  a  party  to  plead  his  evidence 
but  to  anticipate  his  adversary's  case. 

The  locator  is  estopped  to  deny  the  validity  of  his  discovery 
or  location  as  against  his  grantee. — Blake  v.  Thome,  2  Ariz. 
347, 16  P.  270 ;  McCarthy  v.  Speed,  12  S.  D.  7,  50  L.  R.  A.  190, 
20  M.  R.  124,  80  N.  W.  135. 

Overlapping  Stakes. 

Where  a  fractional  claim  was  located  by  stakes  all  set  on 
or  near  the  lines  of  the  surrounding  claims,  the  staking  was 
upheld.— West  Granite  Co.  v.  Granite  Co.,  1  Mont.  356,  17  P. 


RECORD.  97 

547.  And  the  same  where,  through  locating  in  the  night, 
the  stakes  overset  on  the  adjoiner. — Doe  v.  Tyley,  73  Cal.  21, 
14  P.  375. 

Immaterial  Calls. 

The  statute  does  not  require  the  certificate  to  state  the  dis- 
tance from  the  discovery  shaft  to  the  side  lines. — Quimby  v. 
Boyd,  8  Colo.  194,  6  P.  462. 

Wrong  County. 

Where  the  record  is  made  in  the  right  county  but  a  wrong 
county  is  called  for  in  the  description  the  error  is  not  fatal. — • 
Metcalf  v.  Prescott,  10  Mont.  283,  25  P.  1037,  16  M.  R.  137. 
Like  ruling  where  the  record  failed  to  name  county  or  State. — 
Talmadge  v.  St.  John,  129  Cal.  430,  21  M.  R.  13,  62  P.  79; 
Carter  v.  Bacigahipi,  83  Cal.  187,  23  P.  363. 

Names  Omitted  in  the  Record. 

R.  S.  Sec.  2324  requires  that  the  record  "shall  contain  the 
name  or  names  of  the  locators."  The  location  certificate  was 
in  the  names  of  three  only  out  of  five  alleged  discoverers  or 
owners.  It  was  held  that  the  claim  was  in  the  legal  owner- 
ship of  the  three  whose  names  were  used  whatever  might  be 
the  equities  of  the  two  excluded  persons. — United  States  v. 
Ringeling,  8  Mont.  353,  20  P.  643. 

Verification. 

Idaho,  Montana  and  Oregon  require  the  location  certificate 
to  be  verified,  and  it  has  been  decided  that  such  requirement 
is  legitimate  State  legislation  under  R.  S.  Sec.  2322.— Van 
Buren  v.  McKinley,  8  Ida.  93,  21  M.  R.  690,  66  P.  936 ;  Wright 
v.  Lyons,  45  Or.  167,  77  P.  81.  The  rulings  on  the  Montana 
Act  have  been  severe,  if  not  extreme. — McCowan  v.  Maclay,  16 
Mont.  234,  40  P.  602 ;  Berg  v.  Koegel,  16  Mont.  266,  40  P.  605 ; 
Rickey  v.  Anaconda  Co.,  33  Mont.  46,  81  P.  806.  A  verification 


98'  RECORD. 

made  on  information  was  sustained  in  Mares  v.  Dillon,  30 
Mont.  117,  75  P.  963.  But  Clark  Montana  Co.  v.  Butte  Co. 
seems  to  hold  that  a  want  of  verification  is  not  fatal  and  to 
overrule  these  Montana  cases  to  the  contrary. — 233  F.  548. 

Priority  of  Record  Is  So  Generally  Involved  With  Questions 

of  priority  of  location  and  of  continued  possession  that  this 
point  has  in  most  cases  less  weight  than  is  generally  supposed. 
Record  is  the  inception  of  the  written  title,  but  the  actual  title 
of  a  mining  claim,  properly  followed  up,  reaches  back  to  the 
discovery. 

But  if  a  discovery  be  not  followed  by  a  location  and  record 
within  the  time  fixed  by  the  statute,  an  intervening  record 
becomes  the  prior  title.  In  other  words,  the  rights  acquired 
by  discovery  are  forfeited  by  neglect  to  perfect  the  title  by 
location  and  record ;  and  that  title  which  if  properly  followed 
up  would  have  dated  from  discovery,  will,  if  it  be  not  so 
followed  up,  be  suspended  in  favor  of  any  valid  record  made 
after  the  expiration  of  a  reasonable  time,  or  the  period  fixed 
by  statute,  and  before  any  record  of  such  prior  discovery. 

Or  a  record  filed  before  the  statutory  period  has  expired, 
although  based  on  a  junior  discovery,  becomes  the  senior  title 
the  moment  the  time  allowed  to  the  first  discovery  to  complete 
its  record  has  elapsed  without  such  record  being  consummated. 

The  same  rule  applies  to  any  senior  locator  who  permits  the 
time  allowed  for  sinking  his  discovery  shaft  to  expire  before 
he  has  reached  the  required  depth  and  found  the  required 
crevice. 

Where  two  locations  are  made  by  the  same  party  on  the 
same  day,  fractions  of  a  day  may  be  proven  on  the  question 
of,  priority.— Moorhead  v.  Erie  M.  &  M.  Co.,  43  Colo.  408, 
96  P.  253. 

Possession  Without  Valid  Location  or  Record. 

The  cases  upon  this  point  require  careful  examination  to 
ascertain  the  distinctions  made  and  even  after  such  examina- 
tion manifest  inconsistencies  appear. 


EECOKD.  99 

One  series  of  cases  says  that  where  a  party  is  in  actual 
possession  no  stranger  can  invade  such  possession  in  order 
to  initiate  an  adverse  title;  in  other  words,  a  prospector  can 
not  go  upon  the  claim  however  invalid  or  defective,  to  sink  a 
discovery,  set  up  a  notice  or  plant  stakes. — Plioenix  Co.  v.  Law- 
rence, 55  Cal.  143,  12  M.  E.  261 ;  North  Noonday  Co.  v.  Orient 
Co.,  1  F.  522,  9  M.  R.  529,  6.  Sawy.  299 ;  Weese  v.  Barker,  1 
Colo.  178,  2  P.  919 ;  Craig  v.  Thompson,  10  Colo.  517, 16  P.  24; 
Bush  v.  French,  1  Ariz.  99,  25  P.  816. 

Certain  of  these  cases  hold  that  he  may  not  invade  the  actual 
workings  then  or  lately  occupied. — Faxon  v.  Barnard,  2  McCr. 
44,  4  F.  702,  9  M.  R.  516.  Others  hold  that  he  may  not  enter 
within  the  lines  of  the  claim. — Eilers  v.  Boatman,  3  Utah  159, 
15  M.  R.  462,  2  P.  66. 

Some  of  the  above  citations  can  be  justified,  within  certain 
limits,  on  the  principle  of  preserving  the  peace  on  the  public 
domain.  But  their  logical  result,  if  taken  without  qualifica- 
tion, would  be  that  a  .party  in  possession  could  hold  by  his 
possession  alone,  in  disregard  of  all  the  requirements  of  the 
State  Statute  and  of  the  Act  of  Congress. 

On  the  other  hand  there  are  many  decisions  to  the  effect 
that  a  party,  after  the  lapse  of  the  statutory  time  to  complete 
location  and  record,  can  not  hold  against  a  claim  later  in  dis- 
covery but  which  has  been  the  first  to  complete  a  valid  loca- 
tion and  record  under  the  Statute — that  a  miner  can  hold  his 
claim  only  by  compliance  with  the  regulations  prescribed  by 
the  owner  of  the  fee  (the  United  States)  and  the  State  or 
district  regulations  which  such  owner  has  authorized. — Me-  , 
Kinstry  v.  Clark,  4  Mont.  395,  1  P.  759;  Noyes  v.  Black,  4 
Mont  527,  2  P.  769 ;  Horswell  v.  Ruiz,  67  Cal.  Ill,  7  P.  197, 
15  M.  R.  488 ;  Garfield  Co.  v.  Hammer,  6  Mont.  53,  8  P.  153 ; 
Gleeson  v.  Martin  White  Co.,  13  Nev.  442,  9  M.  R.  435;  Sweet 
v.  Weller,  1  Colo.  433,  4  P.  752 ;  Lalande  v.  McDonald,  2  Ida. 
283  (307),  13  P.  347;  DuPrat  v.  James,  65  Cal.  555,  4  P.  562. 
15  M.  R.  341. 

The  Supreme  Court  of  Montana  said:  "Such  location  is  a 
condition  precedent  to  the  grant.  Mere  possession  not  based 


100  RECORD. 

upon  a  valid  location  would  not  prevent  a  valid  location 
under  the  la*."— Eelk  v.  MeagJier,  3  Mont.  65,  1  M.  R.  534, 
and  the  decision  was  affirmed  by  the  Federal  Supreme  Court 
on  the  same  lines.— 104  U.  S.  279,  1  M.  R.  510. 

Plaintiff  was  the  first  discoverer  of  the  Grotto  Lode,  which 
he  staked  and  recorded,  but  his  location  work  was  not  suffi- 
cient. Defendants  entered  later  and  made  a  location  valid  in 
all  respects.  Plaintiff  returned  and  did  work  to  perfect  his 
original  location.  The  Court  held  that  he  could  not  tack  on 
such  later  work  to  impeach  the  intervening  completed  claim. — 
Ferris  v.  McNally,  45  Mont.  20,  121  P.  890. 

Mere  occupation  of  the  public  lands  without  going  through 
any  form  of  procedure  to  obtain  title  gives  no  vested  rights 
against  the  United  States  or  its  vendees. — LQ  Fevre  v.  Amon- 
son,  11  Ida.  45,  81  P.  71. 

First  Complete  Location — One  Party  in  Default. 

The  first  in  time  to  comply  with  all  the  requirements,  after 
allowing  to  the  one  who  takes  the  first  step  to  initiate  a  title 
his  reasonable  or  his  statutory  time  to  complete  the  same,  is 
the  first  in  law. 

"  If  the  first  discoverer  fail  to  sink  his  shaft  within  the 
statutory  period,  or  to  stake  or  record  within  the  time  fixed 
by  law  (or  within  a  reasonable  time  where  there  is  no  Statute) , 
and  a  second  party  makes  a  discovery  while  the  first  party 
is  in  default,  such  second  party  has  the  statutory  time  to 
complete  his  location  and  record  and  will  hold  the  ground 
against  the  original  discoverer,  although  such  original  dis- 
coverer perfects  his  location  and  record  before  the  location 
on  the  second  discovery  is  complete. 

"We  think  the  language  of  the  two  preceding  paragraphs  is 
justified  by  the  language  of  the  Supreme  Court  in  Lockhart 
v.  Johnson,  181  U.  S.  527,  45  L.  Ed.  979,  21  Sup.  Ct.  Rep.  665, 
and  many  other  cases. — Copper  Co.  v.  Allman,  23  Utah  410, 
21  M.  R.  296,  64  P.  1020;  Gregory  v.  Pershbaker,  73  Cal.  109, 
15  M.  R.  602,  14  P.  401 ;  Patterson  v.  Hitchcock,  3  Colo.  533, 


EECORD.  101 

5  M.  R.  542 ;  Tliallman  v.  Thomas,  111  F.  277,  49  C.  C.  A.  317, 
21  M.  R.  573. 

Entry  During  Discoverer's  Locating  Time. 

The  Golden  Bell  lode  was  first  discovered,  put  up  its  notice, 
sank  its  shaft  in  due  time,  but  did  not  record  until  the  three 
months  had  expired.  The  Verde  had  made  a  discovery  during 
the  sixty  days  allowed  to  sink  the  Golden  Bell  shaft,  making 
such  discovery  beyond  the  distance  claimed  by  the  Golden 
Bell  notice.  After  the  three  months  allowed  to  the  Golden 
Bell  had  expired,  and  when  the  Golden  Bell  was  in  default 
but  the  Verde  within  its  time,  the  Verde  made  its  survey — by 
such  survey  taking  up  ground  covered  by  the  Golden  Bell 
notice.  The  Court  held  that  the  Verde,  though  its  discovery 
shaft  was  sunk  on  clear  ground,  was  a  title  initiated  by  tres- 
pass and  could  not  be  made  the  basis  of  a  claim  to  survey  over 
the  Golden  Bell  territory.— Omar  v.  Soper,  11  Colo.  380,  7 
Am.  St.  Rep.  246,  15  M.  R.  496,  18  P.  443. 

The  Jessie  Mac  posted  its  location  notice  on  June  30,  1899, 
but  failed  to  complete  its  location.  The  Cripple  Creek  posted 
its  location  notice  within  the  feet  claimed  by  the  Jessie  Mac 
on  the  fifty-ninth  day  thereafter.  Held:  that  the  first  posted 
notice  was  an  appropriation  of  ground  claimed  by  it,  and  that 
no  title  could  become  initiate  during  the  sixty  days  allowed 
to  sink  discovery,  and  that,  therefore,  the  failure  of  the  Jessie 
Mac  to  complete  its  location  within  the  statutory  time  could 
not  avail  to  make  good  the  Cripple  Creek  location. — Sierra 
Blanco,  M.  Co.  v.  Winchell,  35  Colo.  13,  83  P.  628. 

With  the  doctrine  that  a  notice  is  a  complete  appropriation 
of  the  ground  so  as  to  make  the  entry  of  a  second  prospector 
within  its  area  a  trespasser,  as  is  held  in  the  above  citations, 
we  can  not  for  one  moment  agree,  (1)  because  it  is  carrying  the 
idea  of  trespass  beyond  the  reason  on  which  it  is  based;  (2) 
because  it  operates  unjustly  against  later  but  more  diligent 
prospectors,  and  (3)  because  the  weight  of  authority  is 
against  it. 


102  RECORD. 

1.  The  assertion  that  it  is  a  trespass  at  all  is  not  true, 
because  there  is  no  possession  invaded. — Nash  v.  McNamara,  30 
Nev.  114,  133  Am.  St.  Rep.  694,  16  L.  R.  A.  (N.  S.)  168,  93 
P.  405. 

2.  It  is  indefensible  that  a  mere  notice  of  intention  to  locate, 
which  intention  the  party  stating  it  is  not  bound  to  make  good, 
should  bar  other  prospectors  from  the  right  to  search  for 
mineral  on  the  assumption  that  the  intention  will  be  carried 
out. 

The  second  prospector  takes  the  chances  of  the  notice  being 
perfected  into  a  complete  location,  and  if  it  is  he  must  yield 
to  the  now  perfected  prior  right;  but  if  the  second  party  com- 
pletes his  location  and  the  first  never  does,  we  can  see  no 
reason  why  it  should  be  said  that  the  latter  has  a  tainted 
title.  If  these  cases  cited  are  law  the  party  who  thus  failed 
to  perfect  his  location  could  wait  for  years  and  until  the  first 
complete  location  had  been  developed  into  a  valuable  mine, 
then  make  his  record  and  take  the  ground.  For  if  a  location 
is  initiated  by  trespass  it  never  ripens  into  a  good  title  short 
at  least  of  the  period  of  the  Statute  of  Limitations. 

3.  The  exact  point  is  discussed  and  decided  as  we  claim  that 
it  should  be  in  Helena  M.  Co.  v.  Baggaley,  34  Mont.  464,  87  P. 
456,  and  in  the  Nash  case,  supra. 

In  their  opinion  the  Supreme  Court  of  Montana  hold :  That 
where  a  second  discoverer  enters  on  the  ground  within  the 
area  covered  by  a  notice  lately  posted  and  within  its  lifetime, 
but  the  first  discoverer  fails  to  perfect  his  location  in  due 
time  and  the  second  does  so  perfect,  the  second  party  holds 
the  ground. 

No  exact  rule  can  be  laid  down  to  meet  every  variation  in 
which  the  question  could  present  itself,  but  after  conceding 
that  a  man's  actual  occupation  of  his  workings  may  not  be 
invaded,  and  that  a  drift  would  amount  to  such  actual  occupa- 
tion of  the  vein  for  the  length  of  such  drift  upon  the  vein 
above  and  below;  and  that  an  adverse  entry  would  not  be 
allowed  so  near  to,  although  not  actually  upon,  the  workings 
of  the  prior  party  as  to  threaten  to  provoke  a  breach  of  the 


RECORD.  103 

peace — it  would  seem  that  after  such  concessions,  the  first 
party  having  made  no  record,  or  no  location  certificate  amount- 
ing to  a  valid  record,  or  having  otherwise  failed  in  any  essen- 
tial point  necessary  to  constitute  a  valid  location,  the  ground 
would  be  open  to  the  location  and  record  of  a  valid  claim 
thereon.— Lockhart  v.  Wills,  9  N.  M.  344,  54  P.  336,  19  M.  R. 
497. 

Record  Complete  Before  Adverse  Rights  Initiated. 

Notwithstanding  delay  to  record  or  delay  to  sink  discovery 
or  to  set  stakes  or  to  find  a  well-defined  crevice  or  to  do  any 
other  essential  act  of  location,  it  has  been  repeatedly  and  in 
many  forms  held  that  if  at  length  the  record  or  location  be 
in  fact  perfected  before  the  hostile  title  had  its  inception,  that 
the  title  to  such  delayed  but  finally  completed  location  is  per- 
fect as  against  any  later  initiated  title,  and  that  the  last  act  of 
location  relates  back  to  and  the  title  begins  from  the  original 
date  of  discovery. — McGinnis  v.  Egbert,  8  Colo.  41,  15  M.  R. 
329,  5  P.  652 ;  Preston  v.  Hunter,  67  F.  996,  15  C.  C.  A.  148  ; 
Nelson  v.  Chittenden,  53  Colo.  30,  Ann.  Cas.  1914A  1198, 
123  P.  656. 

All  Parties  in  Default. 

In  the  suit  between  the  Green  Mountain  and  the  Ontario  it 
appeared  that  the  Green  Mount^n  was  discovered  in  August, 
1877,  and  recorded  in  March,  1878.  The  Ontario  was  dis- 
covered in  February  and  recorded  in  July,  1878.  Each  had 
exceeded  the  three  months  allowed  by  law  to  record  and  the 
priority  in  title  (as  to  this  point)  was  given  to  the  first  dis- 
covery. It  seems  that  it  would  have  been  otherwise  if  the 
Ontario,  although  a  later  discovery,  had  completed  its  record 
within  the  three  months. — Faxon  v.  Barnard,  2  McCr.  44,  4  F. 
702,  9  M.  R.  515. 

The  Green  Mountain  had  both  first  discovery  and  first 
record,  but  with  a  long  interval  between.  During  its  delay 
a  second  discovery  had  intervened,  but  it  also  overstepped 


104  RECORD. 

the  statutory  time  and  so  allowed  the  Green  Mountain  to 
secure  the  first  record.  This  case  was  approved  in  Lockhart  v. 
Johnson,  181  U.  S.  527,  45  L.  Ed.  979,  21  Sup.  Ct.  Rep.  665. 
We  have  always  contended  that  where  all  parties  are  in  de- 
fault in  completing  their  location  and  record  within  the 
statutory  periods  that  the  first  record  based  upon  a  valid  dis- 
covery and  location  becomes  a  perfected  title  and  takes  the 
ground  without  regard  to  priority  of  discovery. — Copper  Co. 
v.  Allman,  23  Utah  410,  64  P.  1020,  21  M.  E.  296. 

Possession  During  Locating  Period. 

The  possession  of  the  prospector  during  the  period  allowed 
by  law  to  complete  his  location  and  record  is  protected, 
although  he  has  so  far  no  paper  title. — Erhardt  v.  Boaro,  11 3 
U.  S.  527,  28  L.  Ed.  1116,  5  Sup.  Ct.  Rep.  565,  15  M.  R.  472; 
Marshall  v.  Barney  Peak  Co.,  1  S.  D.  350,  47  N.  W.  290.  His 
location  certificate  when  recorded  relates  back  to  the  date  of 
his  discovery. 

And  no  party  can  intrude  within  his  lines  marked  out  or 
within  the  ground  which  he  has  a  right  to  cover  during  that 
period — limited  to  750  feet  on  each  end  of  his  discovery,  unless 
his  location  notice  (page  37)  fixes  the  number  of  feet  claimed 
each  way.—Bramlett  v.  Flick,  23  Mont.  95,  57  P.  869. 

By  discovery  and  posting  notice  the  claimant  holds  a  prior 
title  only  during  the  period  aliowed  by  the  law  to  complete  his 
location.— Bern's  v.  McNally,  45  Mont.  20,  121  P.  890. 

Possession  After  Such  Period  Elapsed. 

Possession,  at  all  times,  without  regard  to  record,  location 
or  even  the  fee  simple,  still  gives  a  certain  title  as  against  a 
mere  trespasser,  upon  which  ejectment  and  other  actions  may 
be  maintained.— Campbell  v.  Bankin,  99  U.  S.  261,  25  L.  Ed. 
435,  12  M.  R.  257;  Haivxhurst  v.  Lander,  28  Cal.  231,  12 
M.  R.  214 ;  Haws  v.  Victoria  Co.,  160  U.  S.  303,  40  L.  Ed.  436, 
16  Sup.  Ct.  Rep.  282.  Long  continued  possession  presumes 
ownership.— Risch  v.  Wiseman,  36  Or.  484,  78  Am.  St. 


EECORD.  105 

Rep.  783,  59  P.  1111,  20  M.  R.  409.  But,  as  we  have  already 
intimated,  such  right  by  possession  yields  place  at  once  to 
right  by  title,  when  such  title  is  offered  and  proved. — Wilson 
r.  Triumph  Co.,  19  Utah  66,  75  Am.  St.  Rep.  718,  56  P.  301. 
It  requires  location  to  give  the  right  of  possession. — Jordan 
v.  Duke,  4  Ariz.  278,  36  P.  896.  See  "EJECTMENT." 

Possession  is  a  title  only  by  sufferance  in  default  of  some- 
thing better — it  is  the  starting  point,  not  the  goal  of  title — 
and  will  not  prevail  against  the  fee  simple. — Courchaine  v.  Bul- 
lion Co.,  4  Nev.  369,  12  M.  R.  235 ;  or  against  a  title  perfected 
under  the  district  rules. — English  v.  Johnson,  17  Cal.  107,  76 
Am.  Dec.  574,  12  M.  R.  202;  or  against  a  complete  location 
and  record  made  in  compliance  with  the  law. — Sears  v.  Taylor, 
4  Colo.  38,  5  M.  R.  318.  Where  neither  party  perfects  a  valid 
location  the  first  in  possession  has  the  better  right. — Neue- 
laumer  v.  Woodman,  89  Cal.  310,  26  P.  900;  Protective  Co.  v. 
Forest  City  Co.,  51  Wash.  643,  99  P.  1033. 

Where  a  placer  locator  has  no  discovery  he  has  no  actual 
l>ona  fide  possession  and  the  ground  is  open  to  peaceable  entry 
by  others.— Miller  v.  Chrisman,  140  Cal.  440,  98  Am.  St.  Rep. 
63,  73  P.  1083. 

Temporary  suspension  of  work  to  procure  tools  and  sup- 
plies is  no  break  in  a  prospector's  possession,  which  is  a  right 
to  be  protected,  although  no  discovery  has  yet  been  made. — 
Hanson  v.  Craig,  161  F.  861,  89  C.  C.  A.  55. 

After  location  is  completed  the  locator  is  not  bound  to 
remain  in  actual  possession. — Holdt  v.  Hazard,  10  Cal.  App. 
440,  102  P.  549. 

Trespass — Force — Fraud. 

No  right  can  be  initiated  on  government  land  by  force, 
fraud  or  clandestine  entry  upon  the  actual  possession  of 
another,  whether  the  location  of  such  other  be  valid  or  invalid. 
—Nevada,  Co.  v.  Home  Co.,  98  F.  674,  20  M.  R.  283.  Title  to 
a  mining  claim  can  not  be  initiated  by  an  entry  upon  a  prior 
valid  existing  location. — Kirk  v.  Meldrum,  28  Colo.  453,  21 


106  EECORD. 

M.  R.  393,  65  P.  634.  But  the  possession  of  the  first  occupant, 
where  he  has  no  valid  location,  does  not  prevent  an  entry  by  a 
later  party  intending  to  make  a  location. — Thallmann  v. 
Thomas,  111  F.  277 ;  Walsh  v.  Henry,  38  Colo.  393,  88  P.  449. 

Where  parties  were  in  possession  of  part  of  a  claim,  not  the 
owners,  but  apparently  strangers  to  the  title,  the  rule  as  to 
initiation  of  a  claim  by  trespass  does  not  apply. — Riverside  Co. 
v.  Hardurick,  16  N.  M.  479,  120  P.  325. 

A  pretended  relocation  by  marking  the  stakes  of  the  first 
locator  and  adopting  his  lines  in  the  certificate,  the  first 
locator  being  in  no  default,  is  void. — Moffatt  v.  Blue  River 
Co.,  33  Colo.  142,  80  P.  139. 

Where  a  party  sold  claim  to  plaintiff  and  later  was  hired 
by  defendant  to  locate  a  claim,  which  he  did,  covering  the 
same  ground  he  had  sold,  there  was  no  privity  between  him- 
self and  his  employer,  the  defendant,  to  estop  defendant  from 
holding  the  ground  so  located. — Whiting  v.  Straup,  17  Wyo. 
1, 129  Am.  St.  Eep.  1093,  95  P.  849. 

Defendants  bribed  a  prospector  under  grub  stake  contract 
to  allow  discovery  to  lapse  by  failure  to  complete  the  loca- 
tion and  they  were  ruled  to  hold  the  claim  they  had  located 
as  trustees  for  the  outfitter. — Lockhart  v.  Washington  M.  Co., 
16  N.  M.  223,  117  P.  834. 

Defective  Record  Aided  by  Possession, 

In  Eaton  v.  Norris,  131  Cal.  561,  63  P.  856,  21  M.  R.  205, 
the  Court  considered  both  the  fact  of  continued  possession 
and  the  fact  that  the  intruders  had  admitted  knowledge  of 
the  prior  claim — as  matters  of  evidence  to  aid  the  older  title. 
These  dicta  were  wholly  unnecessary  to  the  decision,  as  the 
prior  locators  had  substantial  proof  of  location  without  these 
incidents.  In  Talmadge  v.  St.  John,  129  Cal.  430,  62  P.  79, 
21  M.  R.  13,  a  description  calling  only  for  its  own  corners  was 
held  valid  by  the  aid  of  such  possession.  But  in  Brown  v. 
Oregon  Co.,  110  F.  728,  21  M.  R.  485,  it  is  held  in  terms  that 
if  the  prior  location  is  not  valid  the  later  comer  may  locate, 
although  he  had  full  notice  of  the  prior  asserted  claim. 


RECORD.  107 

In  general  terms,  the  first  who  complies  with  the  law  in 
completing  his  location  is  the  first  in  right  and  this  com- 
plaisant recognition  of  priority  on  the  ground,  and  of  void 
notices,  as  tending  to  raise  a  supposed  equity,  is  simply  judicial 
weakness,  leading  only  to  uncertainty  and  injustice.  The 
Oregon  Co.  case  boldly  states  the  law  as  it  should  be  stated. 
As  between  two  prospectors,  the  fact  that  one  is  the  first  comer 
or  the  fact  that  the  second  knew  that  the  first  was  on  the 
ground  before  him,  does  not  weaken  the  rights  of  the  second 
comer  if  he  be  the  first  to  comply  with  the  law — the  common 
protector  of  the  rights  of  both. 

The  extent  of  the  indulgence  legally  to  be  allowed  to  the 
prior  locator  is  to  view  his  evidence  "in  the  most  favorable 
light  such  evidence  will  reasonably  justify." — Ambergris  M. 
Co.  v.  Day,  12  Ida.  108,  85  P.  110. 

Extensions. 

The  paragraph  from  section  2320,  quoted  on  page  22  of 
itself  disposes  of  all  "extensions"  and  side  claims,  unless  they 
be  of  themselves,  howsoever  named,  independent  discoveries 
and  locations.  "Extension"  is  a  word  often  added  to  the 
name  proper  of  a  location  staked  off  to  the  right  or  left  of 
some  developed  vein,  suggestive  of  the  hope,  if  not  the  fact, 
that  the  new  location  is  planted  on  the  same  ore  body  on 
its  strike. 

Lode  Location  Held  Good  As  Placer. 

Where  a  party  has  located  a  claim,  not  describing  it  as  a 
lode,  but  of  the  length  and  width  of  a  lode  claim  upon  a  deposit 
usually  classed  as  placer,  the  Court  held  that  placers  and 
lodes  are  taken  up  by  substantially  the  same  procedure  and 
that  if  what  was  done  mad£  it  a  valid  mining  location  it  would 
be  sustained  as  a  placer. — McCann  v.  McMillan,  129  Cal.  350, 
62  P.  31,  21  M.  E.  6.  But  a  placer  location  tm  a  metallic 
vein  was  held  void  in  Buffalo  Co.  v.  Crump,  70  Ark.  525,  91 
Am.  St.  Rep.  87,  69  S.  W.  572,  22  M.  E.  276. 


108  ABANDONMENT. 

ABANDONMENT. 

District  and  Territorial  Regulations. 

The  district  regulations  in  early  years  often  declared  what 
acts  or  omissions  should  amount  to  an  abandonment.  Failure 
to  represent  or  work  for  a  single  season  or  even  for  a  very 
limited  period  was  usually  sufficient  cause.  As  a  camp  became 
more  or  less  deserted  the  miners  about  to  leave  frequently  met 
and  passed  resolutions  to  the  other  extreme — that  all  claims 
should  remain  valid  without  any  work  or  representation. 

Where  the  district  organizations  are  still  preserved  a  rule 
covering  or  attempting  to  cover  this  point  may  remain  valid 
and  enforceable  except  that  a  rule  requiring  less  than  $100 
annual  labor  would  be  an  infringement  upon  the  Congressional 
Act.— Original  Co.  v.  Winthrop  Co.,  60  Cal.  631;  Northmore 
v.  Simmons,  97  F.  386,  38  C.  C.  A.  211,  20  M.  R.  128. 

The  legislatures  have  not  attempted  the  dangerous  matter 
of  defining  in  terms  what  amounts  to  abandonment.  The  cir- 
cumstances surrounding  each  particular  case  vary  too  much 
to  make  a  sweeping  rule  in  all  instances  fair. 

Confined   to   Possessory   Titles — Associated   With   Annual 
Labor. 

Although  the  title  to  mining  claims  has  been  at  all  times 
of  that  class  which  might  be  lost  by  abandonment  (Ferris  v. 
Coover,  10  Cal.  631),  and  although  a  technical  abandonment 
may  at  this  day  be  proved  as  to  any  sort  of  possessory  title, 
the  subject  has  lost  much  of  its  importance  except  in  connec- 
tion with  the  annual  labor  acts. 

Abandonment  Is  a  Question  of  Fact, 

and  the  fact  is  to  be  found  from  the  intention. — Myers  v. 
Spooner,  55  Cal.  257,  9  M.  R.  519 ;  Taylor  v.  Middleton,  67 
Cal.  656,  8  P.  594,  15  M.  R.  284;  Mallett  v.  Uncle  Sam  Co., 
1  Nev.  188,  90  Am.  Dec.  484,  1  M.  R.  17 ;  Oreamuno  v.  Uncle 


ABANDONMENT.  109 

Sam  Co.,  1  Nev.  215,  1  M.  R.  32;  Marshall  v.  Harney  Peak  Co., 
1  S.  D.  350,  47  N.  W.  290.  It  is  a  question  of  fact  for  the 
jury.— Aye  v.  Philadelphia  Co.,  193  Pa.  St.  451,  74  Am.  St. 
Rep.  696,  20  M.  R.  177,  44  Atl.  555.  Desertion  and  abandon- 
ment are  equivalent  terms. — Derry  v.  Ross,  5  Colo.  295,  1 
M.  R.  1. 

Abandonment  being  thus  a  matter  of  intention,  it  follows 
that  even  after  doing  his  work  if  the  miner  should  deliberately 
quit  his  claim  with  expression  of  his  intention  to  never  return 
to  it,  or  give  permission  to  others  to  occupy  it  as  their  own, 
such  manifest  proof  of  intent  would  establish  abandonment; 
but  in  most  cases  the  failure  to  do  the  annual  labor  is  the  fact 
upon  which  the  issue  is  predicated  and  the  law  of  annual 
labor  involves  no  question  of  intent. — Depuy  v.  Williams,  5 
M.  R.  251,  26  Gal.  310;  Doherty  v.  Morris,  11  Colo.  12,  16  P. 
911 ;  Street  v.  Delta  Co.,  42  Mont.  371,  112  P.  702. 

There  must  be  a  concurrence  of  intention  to  abandon  and 
actual  relinquishment  of  the  property. — Peachy  v.  Frisco  M. 
Co.,  204  F.  659. 

Ceasing  to  work  because  ore  not  salable  is  no  abandonment. 
—Hosford  v.  Metcalf,  113  Iowa  240,  84  N.  W.  1054. 

In  McCann  v.  McMillan,  129  Cal.  350,  62  P.  31,  21  M.  R.  6, 
the  owner  of  a  claim,  on  the  last  day  but  one  for  doing  his 
annual  labor  proclaimed  the  claim  abandoned  and  at  once 
went  through  the  form  of  relocating  it  in  the  name  of  a  third 
party.  On  the  first  day  of  January  it  was  relocated  by  the 
plaintiffs.  The  Court  held  that  the  pretended  relocation  of 
December  30  was  void  because  there  was  in  fact  no  abandon- 
ment. The  decision  was  clearly  right  because  the  whole  affair 
was  a  collusive  proceeding;  the  defendant  did  not  intend  to 
abandon  but  to  hold  in  the  name  of  a  friend.  But  if  a  third 
party  not  in  collusion  with  the  first  owner  had  located  on 
December  31  it  could  have  been  readily  held  that  the  abandon- 
ment was  complete  although  the  friendly  relocation  attempted 
in  connection  with  it  was  void. 

A  father  failed  to  do  the  work  in  1890.  His  son  relocated 
in  1891  and  afterwards  conveyed  to  the  father..  The  location 


110  ABANDONMENT. 

of  1891  was  defective.  In  a  suit  by  the  owner  of  a  later 
location,  Held:  that  defendant,  the  father,  could  not  recall  his 
abandonment  and  rely  on  his  original  title. — Niles  v,  Kennan, 
27  Colo.  502,  62  P.  360,  21  M.  E.  33. 

A  relocator  may  explain  inadvertent  recital  of  abandonment 
in  his  certificate.— Peachy  v.  Frisco  Co.,  204  F.  659. 

Abandonment  and  Forfeiture  Distinguished. 

These  two  terms  are  often  used  indiscriminately,  but  there 
is  a  clear  distinction  between  them.  Abandonment  is  the  act 
and  forfeiture  is  the  consequence.  It  requires  only  one  party 
to  abandon;  it  requires  at  least  two  parties  to  work  a  for- 
feiture. If  the  owner  of  a  claim  quits  work  and  leaves  the 
country,  intending  never  to  return,  leaving  no  agent  to  rep- 
resent his  property,  it  would  be  a  typical  case  of  abandon- 
ment. But  if  at  a  later  period  he  returns  and  resumes  work 
his  title  would  not  have  been  lost — he  would  not  be  required 
to  relocate — if  no  second  party  had  in  the  meantime  attempted 
to  locate  the  claim.  There  has  been  in  such  case  an  abandon- 
ment but  no  forfeiture,  and  no  second  party  having  acquired 
rights,  the  intent  to  abandon  becomes  a  mere  matter  of  senti- 
ment.—National  M.  Co.  v.  Piccolo,  54  Wash.  617,  104  P.  128 ; 
Florence  Roe  Co.  v.  Kimbel,  85  Wash.  162,  147  P.  881; 
Bingham  Co.  v.  Ute  Co.,  181  F.  748;  Shank  v.  Holmes,  15 
Ariz.  229,  137  P.  871;  Co-operative  Co.  v.  Law,  65  Or.  250, 
132  P.  521. 

On  the  other  hand  the  intention  to  .abandon  becomes  imma- 
terial in  two  classes  of  cases  where  it  may  be  said  there  has 
been  no  abandonment,  but  there  is  a  forfeiture : 

1.  Where  a  lessee  is  under  covenant,  or  an  owner  is  under  a 
legal  duty  to  do  a  certain  thing;  if  he  neglects  to  do  it  his 
rights  are  forfeited  without  regard  to  his  intention  as  soon  as 
the  lessor  elects  to  declare  the  forfeiture,  or  in  the  case  of  an 
unpatented  mining  claim  when  a  second  party  makes  his  relo- 
cation.— Parish  Fork  Co.  v.  Bridgewater  Co.,  51  W.  Va.  583, 
59  L.  R.  A.  566,  42  S.  E.  655,  22  M.  R.  145;  McKay  v.  Me- 


ABANDONMENT.  Ill 

Dougall,  25  Mont.  258,  87  Am.  St.  Rep.  395,  64  P.  669 ;  Phil- 
lip? v.  Hamilton,  17  Wyo.  41,  95  P.  846. 

2.  Where  the  conduct  of  the  party  is  such  that  abandonment 
is  a  necessary  conclusion  notwithstanding  the  want,  or  a 
party's  denial,  of  his  intention. — Trevaskis  v.  Peard,  111  Cal. 
599, 18  M.  R.  353,  44  P.  246 ;  N.  A.  Expl.  Co.  v.  Adams,  104  F. 
404,  45  C.  C.  A.  185,  21  M.  R.  65. 

It  requires  affirmative  action  by  the  lessor  to  enforce  a  for- 
feiture.— Kansas  N.  G.  Co.  v.  Harris,  79  Kan.  167,  100  P.  72. 

Quitting  to  Lure. 

Such  a  thing  as  a  conditional  abandonment  can  not  be  recog- 
nized. Where  the  owner  allows  strangers  to  hold  a  claim  under 
color  of  title,  standing  by  and  intending  to  resume  work  only 
in  case  its  development  shows  pay,  his  action  amounts  to 
abandonment. — Trevaskis  v.  Peard,  supra. 

How  Proved. 

Lapse  of  time,  though  not  conclusive,  is  an  incident  tending 
to  prove  abandonment. — Mallett  v.  Uncle  Sam  Co.,  1  Nev.  188, 
80  Am.  Dec.  484,  1  M.  R.  17 ;  Beaver  Co.  v.  St.  Vrain  Co.,  6 
Colo.  App.  130,  40  P.  1066.  Leaving  tools  in  the  mine  tends 
to  disprove  it. — Harkness  v.  Burton,  39  Iowa  101,  9  M.  R.  318. 
Proof  that  a  stranger  had  relocated  ground  as  abandoned  does 
not  prove  that  it  was  in  such  condition. — McGinnis  v.  Egbert, 
8  Colo.  41,  15  M.  R.  329,  5  P.  652. 

Where  the  owners  of  a  three-fourths  interest  in  a  claim 
permitted  J.  to  enter  and  relocate  it  as  a  new  claim,  this  was 
an  abandonment  as  to  such  three-fourths  interest,  but  did  not 
bind  the  owner  of  the  remaining  fourth.  But  such  owner 
subsequently  assenting,  the  abandonment  became  complete  and 
the  new  location  was  not  to  be  considered  as  a  claim  initiated 
by  trespass.— Conn  v.  Oberto,  32  Colo.  313,  76  P.  369;  Oberto 
v.  Smith,  37  Colo.  21,  86  P.  86. 


112  ABANDONMENT. 

Of  Prospect  Before  Record. 

Where  a  discoverer  by  conduct  shows  an  intent  to  quit  njirl 
not  perfect  his  location  begun,  the  claim  is  abandoned  and 
strangers  need  not  await  the  expiration  of  the  prospector's 
time  before  locating. — Kinney  v.  Fleming,  6  Ariz.  263,  56  P. 
723,  20  M.  R.  13. 

In  Spokane  Co.  v.  Larson,  the  Court  held  certain  alleged 
placer  locations  to  have  been  unperfected  and  merely  specula- 
tive and  allowed  proof  of  expenditures  made  by  the  defendant 
after  the  suit  was  begun  in  aid  of  its  plea  of  abandonment 
by  plaintiffs.— 71  Wash.  301,  128  P.  641. 

Ditches  and  Water. 

Failure  to  use  water  and  allowing  ditch  to  go  to  decay  are 
evidence  tending  to  prove  abandonment. — Dorr  v.  Hammond,  1 
Colo.  79,  1  P.  693 ;  Sieber  v.  Frink,  1  Colo.  149,  2  P.  901.  But 
non-user  alone  does  not  of  itself  necessarily  imply  abandon- 
ment.— Welch  v.  Garrett,  5  Ida.  639,  51  P.  405,  19  M.  R.  193 ; 
Integral  Co.  v.  Altoona  Co.,  75  F.  379,  21  C.  C.  A.  409 ;  N.  A. 
Co.  v.  Adams,  104  F.  404,  45  C.  C.  A.  185,  21  M.  R.  65.  A  ditch 
may  be  abandoned  without  the  abandonment  of  the  owner's 
water  rights— Nichols  v.  Mclntosh,  19  Colo.  22,  34  P.  278; 
Wood  v.  Etiwanda  Co.,  147  Cal.  228,  81  P.  512. 

Other  Subjects  of  Abandonment. 

A  leasehold  interest,  water,  slag  and  tailings  are  things 
which  may  be  lost  by  abandonment. — Glasgow  v.  Chartiers  Co., 
152  Pa.  St.  48,  25  Atl.  232,  17  M.  R.  523 ;  Barker  v.  Dale,  3 
Pgh.  190,  Fed.  Cas.  No.  988,  8  M.  R.  597 ;  McGoon  v.  Ankeny, 
11  111.  558,  1  M..R.  9;  Porter  v.  Noyes,  47  Mich.  55,  10  N.  W. 
77.  A  prospecting  contract  may  be  abandoned. — Chadbourne 
v.  Davis,  9  Colo.  581,  13  P.  721,  15  M.  R.  620;  McLaugUin  v. 
TJiompson,  2  Colo.  App.  135,  29  P.  816.  And  failure  to  supply 
his  outfit  to  the  prospector  will  justify  abandonment  by  the 
prospector.— Hurley  v.  Ennis,  2  Colo.  300,  12  M.  R.  360. 

All  improvements  found  on  abandoned  claims  belong  to  the 
relocator.— Wolf  skill  v.  Smith,  5  Cal.  App.  175,  89  P.  1001. 


ABANDONMENT.  113 

Pleading. 

There  has  been  no  consistency  in  the  rulings  as  to  whether 
abandonment  necessitates  a  special  plea.  California  has  uni- 
formly held  that  it  does  not. — Willson  v.  Cleaveland,  30  Cal. 
192 ;  Bell  v.  Bed  Rock  Co.,  1  M.  R.  45,  36  Cal.  214 ;  Contreras  v. 
Merck,  131  Cal.  211,  63  P.  336;  Trevaskis  v.  Peard,  supra. 
But  the  current  of  authority  elsewhere  seems  to  require  such 
plea.— Hector  Co.  v.  Valley  View  Co.,  28  Colo.  315,  64  P.  205 ; 
Bishop  v.  Baisley,  28  Or.  119,  41  P.  936 ;  Renshaw  v.  Sivitzer, 
6 'Mont.  464, 13  P.  127 ;  Cache  Creek  Co.  v.  Brahenberg,  217  F. 
240,  133  C.  C.  A.  234. 

Whether  pleaded  or  not  the  decisions  are  uniform  that 
when  relied  on  the  party  asserting  it  has  the  burden  of  proof. 
—Johnson  v.  Young,  18  Colo.  625,  34  P.  173;  Niclwls  v.  Mc- 
Intosli,  19  Colo.  22,  34  P.  278 ;  Hammer  v.  Garfield  Co.,  130 
U.  S.  291,  32  L.  Ed.  964,  9  Sup.  Ct.  Rep.  548,  16  M.  R.  125. 
And  it  must  be  strictly  proved. — Mt.  Diablo  Co.  v.  Callison, 
5  Sawy.  439,  Fed.  Cas.  No.  9886 ;  Colman  v.  Clements,  5  M.  R. 
247,  23  Cal.  245. 

But  in  Duncan  v.  Eagle  Rock  Co.,  48  Colo.  569,  111  P.  588, 
an  adverse  claim  suit,  where  a  junior  location  overlapped  a 
senior  claim  (which  is  a  relocation  to  the  extent  of  the  ground 
covered  by  the  overlap),  the  Court  held  that  the  senior  lode 
must  prove  that  its  annual  labor  had  been  done  for  the  year 
preceding  the  date  of  the  location  of  the  later  claimant. 

In  Harper  v:  Hill,  159  Cal.  250, 113  P.  163,  the  abandonment 
and  forfeiture  of  a  claim  not  mentioned  in  the  pleadings  were 
allowed  to  be  proved. 

As  to  "pleading  and  proof  in  adverse  claim  cases,  see  p.  620. 

Outstanding  Abandoned  Title. 

The  fact  that  there  may  have  been  locations  now  abandoned 
and  not  claimed  by  either  party  renders  such  outstanding 
titles  of  no  relevancy  to  the  rights  of  either. — Craig  v.  Thomp- 
son, 10  Colo.  517,  16  P.  24. 


114  ANNUAL  LABOB. 

ANNUAL  LABOR. 
Annual  Expenditure. 

R.  S.  Sec.  2324.  *  *  •  On  each  claim  located  after  the  tenth  day 
of  May,  eighteen  hundred  and  seventy-two,  and  until  a  patent  has  been 
issued  therefor,  not  less  than  one  hundred  dollars'  worth  of  labor  shall  be 
performed  or  improvements  made  during  each  year.  On  all  claims  located 
prior  to  the  tenth  day  of  May,  eighteen  hundred  and  seventy-two,  ten 
dollars'  worth  of  labor  shall  be  performed  or  improvements  made  by  the 
tenth  day  of  June,*  eighteen  hundred  and  seventy-four,  and  each  year 
thereafter,  for  each  one  hundred  feet  in  length  along  the  vein  until  a 
patent  has  been  issued  therefor;  but  where  such  claims  are  held  in 
common,  such  expenditure  may  be  made  upon  any  one  claim;  and  upon  a 
failure  to  comply  with  these  conditions,  the  claim  or  mine  upon  which  such 
failure  occurred  shall  be  open  to  relocation  in  the  same  manner  as  if  no 
location  of  the  same  had  ever  been  made,  provided  that  the  original 
locators,  their  heirs,  assigns,  or  legal  representatives,  have  not  resumed 
work  upon  the  claim  after  failure  and  before  such  location.  *  *  * 
— Sec.  5  A.  C.  May  10, 1872. 

Amendment  of  1880,  Adopting  the  Calendar  Year. 

Sec.  2. — That  section  twenty-three  hundred  and  twenty-four  of  the 
Revised  Statutes  of  the  United  States  be  amended  by  adding  the  follow- 
ing words:  "Provided,  That  the  period  within  which  the  work  required 
to  be  done  annually  on  all  unpatented  mineral  claims  shall  commence  on 
the  first  day  of  January  succeeding  the  date  of  location  of  such  claim,  and 
this  section  shall  apply  to  all  claims  located  since  the  tenth  day  of  May, 
anno  Domini  eighteen  hundred  and  seventy-two." — Jan.  S2,  1880. 

Alaska  Act  of  1907. 

That  during  each  year  and  until  patent  has  been  issued  therefor,  at 
least  one  hundred  dollars'  worth  of  labor  shall  be  performed  or  improve- 
ments made  on,  or  for  the  benefit  or  development  of,  in  accordance  with 
existing  law,  each  mining  claim  in  the  district  of  Alaska  heretofore  or 
hereafter  located.  *  *  * 

*  *  *  And  upon  failure  of  the  locator  or  owner  of  any  such  claim 
to  comply  with  the  provisions  of  this  act,  as  to  performance  of  work  and 
improvements,  such  claim  shall  become  forfeited  and  open  to  location  by 
others  as  if  no  location  of  the  same  had  ever  been  made.  *  *  * 
34  St.  L.  1243,  Comp.  L.  1913,  Sec.  16Z. 


*June  10,  1874,  should  read  January  1,  1875.  The  time  was  first 
extended  to  June  10,  1874,  17  Stat.  L.  483,  and  later  to  January  1,  1875, 
18  Stat.  L.  61. 


ANNUAL  LABOR.  115 

Annual  Labor  Was  Not  Required  by  either  Legislative  or 
Congressional  law  before  the  passage  of  the  A.  C.  May  10, 

1872. 

Often  Required  by  District  Rules. 

By  some  of  these  rules  a  man  was  bound  to  do  some  work 
upon  his  claim  every  week,  or  every  month, 'but  these  rules 
in  most  sections  had  fallen  into  disuse  at  the  time  of  the 
passage  of  the  Act  referred  to.  Their  provisions  both  as  to 
amount  required  and  the  period  in  which  to  perform  are 
superseded  by  the  terms  of  the  Congressional  Act. 

The  idea  of  annual  or  periodical  labor  is  not  new;  it  was  a 
part  of  the  Spanish  system,  and  generally  prevailed  on  the 
Pacific  Slope. 

The  A.  C.  May  10,  1872,  divided  lodes  into  two  classes 
with  respect  to  labor: 

1.  Lodes  located  before  its  passage. 

2.  Lodes  located  after  its  passage. 

Claims  Located  Before  May  10,  1872. 

The  amount  of  labor  required  on  all  such  lodes  was  $10 
for  each  hundred  feet,  but  where  claims  were  held  in  com- 
mon, the  whole  amount  of  work  might  be  done  on  one  claim. 
The  time  for  the  first  work  on  old  lodes  was  originally  fixed  to 
expire  May  10,  1873,  i.  e.,  one  year  after  the  passage  of  the 
act.  It  was  further  extended  to  June  10,  1874,  and  finally 
postponed  to  January  1,  1875. — Thompson  v.  Jacobs,  3  Utah 
246,  2  P.  714. 

The  Act  of  1880  made  no  change  either  in  the  amount  or 
time  of  annual  labor  on  old  claims.  It  has  always  been  and 
still  is  $10  for  each  100  feet  during  each  year  of  our  Lord, 
beginning  January  1,  1875;  and  the  time  between  May  10, 
1872,  and  January  1,  1875,  constituted  the  period  for  the 
first  required  labor. 

But  few  claims  remain  subject  to  this  law.  During  the 
lapse  of  time,  now  more  than  forty  years,  they  linve  1  < ;  n 


116  ANNUAL  LABOR. 

either  abandoned  or  passed  on  to  patent,  or  have  been  relo- 
cated. When  so  relocated  they  are  governed  by  the  terms  of 
the  next  subdivision. 

Claims  Located  Since  May  10,  1872.  ' 

The  various  extensions  of  time  for  work  on  old  lodes  did 
not  apply  to  the  new  lodes.  The  period  for  the  first  work  was 
never  extended,  nor  has  any  change  been  made  except  the 
Act  of  1880.  Under  the  original  Act  the  annual  period  for 
labor  on  claims  located  after  its  date,  May  10,  1872,  began 
on  the  date  of  location,  and  this  date  was  hard  to  fix  with 
exactness.  It  might  have  been  any  date,  intermediate  between 
discovery  and  record.  The  Act  of  1880  makes  the  annual 
period  now  coincide  with  that  fixed  for  old  claims,  to-wit: 
each  calendar  year. 

Each  Claim  an  Entirety— Work  on  Subdivided  Claim. 

The  1,500-foot  lodes  being  single  claims  of  that  length  and 
a  certain  amount  of  work  being  required  upon  the  claim,  and 
the  clause  as  to  "each  100  feet  in  length  along  the  vein"  not 
applying  to  these  new  locations,  it  does  not  seem  that  a  party, 
by  expending  any  portion  of  the  full  amount,  can  save  any 
fractional  portion  of  his  lode.  But  if  a  party  own  a  segre- 
gated portion  of  such  claim:  Is  he  required  to  do  the  full 
amount  essential  to  hold  a  claim,  in  case  the  other  owners 
refuse  to  contribute  ? 

It  seems  he  is  under  this  necessity,  and  each  interested 
party  must  see  for  himself  that  the  amount  required  to  hold 
the  claim  is  done  by  some  person,  and  if  the  whole  burden 
falls  upon  one  party,  the  rest  of  the  claim  becomes  forfeit  to 
such  party.  There  is  no  distinction  made  between  those  who 
own  separate  feet  and  those  who  own  undivided  interests  in 
the  claim. 

The  word  "co-owners,"  used  in  the  Act,  does  not  appear  to 
be  used  in  its  ordinary  acceptation,  as  tenants  in  common,  but 
to  include  all  the  owners,  either  in  common  or  after  they  have 


ANNUAL  LABOR.  117 

segregated  their  interests;  the  claim  seems  to  be  treated  as  an 
individual  item  so  far  as  the  relations  between  the  government 
and  the  miner  are  concerned ;  if,  therefore,  all  the  labor  is  per- 
formed by  the  owner  of  the  east  end  he  may  claim  forfeit  of  the 
west  end ;  or  if  it  is  all  performed  by  the  owner  of  an  undivided 
half,  he  is  in  position  to  become  the  sole  owner  by  proper  notice 
under  the  forfeiture  clause  upon  refusal  of  the  other  co-tenant 
to  contribute  his  proportion.  But  this  is  only  the  apparent 
reading  of  the  Act  as  to  claims  which  have  been  segregated 
into  several  parts,  and  would  give  a  benefit  to  a  party  who 
had  no  more  connection  with  the  other  end  of  the  claim  than 
a  mere  stranger.  Consequently  this  can  only  be  treated  as  a 
suggestion  of  the  true  construction  of  an  Act  which  is  so 
worded  as  to  be  entirely  ambiguous  on  this  point. 

The  above  paragraph  is  from  the  fifth  edition  of  this  book 
in  1881,  but  we  have  seen  no  decision  nor  found  any  reason 
to  since  change  it  as  the  true  construction  of  the  Act. 

$500  Work  Already  Done. 

The  fact  that  sufficient  improvement  ($500  worth)  has  been 
done  to  authorize  issuance  of  patent,  does  not  dispense  with 
the  necessity  for  the  annual  expenditure. 

Annual  labor  is  required,  although  the  claimant  has  been 
in  possession  for  more  than  the  statutory  period. — Upton  v. 
Santa  Rita  Co.,  14  N.  M.  96,  89  P.  275. 

Pending  Application  for  Patent,  until  Entry,  the  Work  Must 

be  kept  up. — South  End  Co.  v.  Tinney,  22  Nev.  1§,  35  P.  89. 
Where  an  applicant  after  publication  delays  entry  and  neglects 
his  annual  labor  the  ground  is  open  to  relocation. — Gillis  v. 
Downey,  85  F.  483,  29  C.  C.  A.  286,  19  M.  R.  253. 

The  relocator's  title  in  such  case  being  necessarily  too  late 
to  be  protected  by  adverse  claim,  it  may  be  asserted  by  suit. — 
Poor e  v.  Kaufman,  44  Mont.  248,  119  P.  785. 


118  ANNUAL  LABOB. 

Annual  Labor  After  Entry. 

It  has  been  decided  that  annual  labor  can  not  be  required 
after  entry  in  the  Land  Office,  although  the  patent  has  not  yet 
been  formally  issued;  and  such  decision  is  clearly  correct, 
because  the  patent,  when  it  issues,  relates  back  to  the  date 
of  entry,  and  so  satisfies  the  wording  of  the  Act,  which  requires 
the  annual  labor  each  year  "until  patented." — Alia  Co.  v. 
Benson  Co.,  2  Ariz.  362,  16  P.  565 ;  Aurora  Hill  Co.  v.  85  Co., 
34  F.  515,  12  Sawy.  355,  15  M.  E.  581,  L.  0.  Reg.  14,  26  L.  D. 
196,  27  Id.  396.  A  relocation  can  not  be  made  on  entered  lands 
as  long  as  the  entry  stands. — Neilson  v.  Champaigne  Co., 
Ill  F.  655,  21  M.  R.  664;  Benson  Co.  v.  Alta  Co.,  145  U.  S. 
428,  36  L.  Ed.  762,  12  Sup.  Ct.  Rep.  877,  17  M.  R.  488; 
Southern  Cross  Co.  v.  Sexton,  147  Cal.  758,  82  P.  423. 

While  the  entry  stands  on  the  Land  Office  books,  the  land 
is  withdrawn  from  the  Public  Domain  even  if  cause  for  can- 
cellation exists  and  cancellation  later  is  allowed.  Such  is  the 
clear  ruling  in  Batterton  v.  Douglas  M.  Co.,  20  Ida.  760,  38 
L.  R.  A.  (N.  S.)  1121,  120  P.  827. 

On  the  facts  of  the  case,  an  entry  having  been  made,  the 
annual  labor  then  neglected,  followed  by  a  relocation  by  a 
new  party,  such  relocation  was  held  void,  although  the  entry 
was  later  set  aside  for  short  posting. 

It  cites  Murray  v.  Polglase,  23  Mont.  401,  59  P.  440,  20 
M.  R.  296,  where  the  receiver's  receipt  having  been  set  aside 
for  fraud,  such  a  relocation  was  held  valid.  It  says  there  may 
be  a  distinction  between  the  cases  on  such  ground  of  fraud, 
but  attacks  the  principle  on  which  the  Murray  case  was 
decided.  In  line  with  the  Murray  case  are :  Shanks  v.  Holmes, 
15  Ariz.  246,  137  P.  871;  Swigart  v.  Walker,  49  Kan,  100, 
30  P.  162. 

But  it  would  seem  that  the  case  of  Brown  v.  Gurney,  201 
U.  S.  184,  50  L.  Ed.  717,  26  Sup.  Ct.  Rep.  509,  makes  good 
the  rule  quoted  from  the  Batterton  case  and  overrules  the 
other  decisions  above  cited,  the  conclusion  being  that  a  relo- 
cation can  not  be  made  while  the  entry  stands  or  until  the 


ANNUAL  LABOR.  119 

old  locator  does  some  act  which  amounts  to  abandonment  of 
his  title  from  which  act  a  cancellation  of  his  entry  neces- 
sarily follows.  3  Lindley,  3d  ed.,  sec.  772. 

Time  During  Which  Labor  Must  Be  Completed. 

On  all  lodes  located  before  or  since  May  10,  1872,  the  year 
for  doing  the  labor  is  each  year  of  our  Lord,  beginning  Janu- 
ary 1st  and  ending  December  31st. 

The  Location  Year. 

Since  the  Act  of  1880  no  annual  labor  is  required  during  the 
year  in  which  the  location  is  made. — Hall  v.  Hale,  8  Colo.  351, 
8  P.  580;  McGinnis  v.  Egbert,  15  M.  E.  329,  8  Colo.  41, 
5  P.  652.  Its  language  is  that  the  period  "shall  commence 
on  the  first  day  of  January  succeeding  the  date  of  location." 

But  a  district  rule  or  Statute  may  impose  conditions  which 
imply  expenditure  during  the  location  year. — North-more  v. 
Simmons,  97  F.  387,  38  C.  C.  A.  211,  20  M.  R.  128. 

The  annual  labor  period  does  not  begin  until  discovery  and 
location  are  completed. — Borgwardt  v.  McKittrick  Oil  Co., 
164  Gal.  650, 130  P.  417. 

The  Date  of  Location. 

If  a  discovery  be  made  in  the  latter  part  of  the  year  but  the 
staking  and  record  are  not  completed  until  some  time  in  the 
early  part  of  the  following  year,  the  latter  year  would  be,  in 
our  opinion,  the  location  year,  and  there  could  be  no 'for- 
feiture for  neglect  to  do  the  annual  labor  during  that  year; 
but  we  find  no  case  where  the  point  has  been  in  terms  decided. 
A  location  is  not  complete  until  all  its  several  parts  have  been 
perfected.— McKay  v.  McDougall,  25  Mont.  258,  87  Am.  St. 
Rep.  395,  64  P.  669;  Hickey  v.  Anaconda  Co.,  33  Mont.  46, 
81  P.  806,  811. 

But  the  word  "location"  is  used  with  extreme  looseness  in 
many  statutes.  In  Nevada  the  discoverer  is  required  to  post 


120  ANNUAL  LABOR. 

a  notice  "at  the  time  and  point  of  discovery"  which  must 
contain  the  date  of  location  so  that  practically  the  date  of 
discovery  is  made  the  date  of  location. 

The  Statutes  of  Idaho,  Utah,  Oregon  and  "Washington  seem 
to  fix  the  date  of  posting  or  at  least  the  date  of  some  early 
act  in  the  process  of  location  as  the  date  of  location. 

In  New  Mexico  the  case  of  Deeny  v.  Mineral  Creek  Co., 
11  N.  M.  279,  291,  67  P.  724,  22  M.  E.  47,  construes  the  local 
Statute  to  the  same  effect. 

In  Arizona  by  Stats.  Sees.  3232,  3234,  the  date  of  posting  the 
discovery  monument  seems  to  be  made  the  date  of  location 
and  the  sinking  of  the  shaft  and  setting  the  boundaries  are 
only  declaratory  of  the  fact  of  location. 

The  Montana  Statute  in  terms  says  that  the  date  of  location 
''shall  be  the  date  of  posting  such  notice." 

In  the  absence  of  any  such  Statute  the  date  of  the  last  act 
to  be  done  on  the  ground  seems  obviously  to  be  the  date  of 
location.  It  can  not  include  the  date  of  record  because  the 
record  under  the  Act  of  Congress  must  give  the  date  of 
location,  which,  to  be  so  given,  must  necessarily  be  precedent 
to  the  paper  reciting  it,  except  of  course  that  the  record 
might  be  made  on  the  same  date  that  the  last  act  was  per- 
formed on  the  ground. 

Each  Annual  Period  An  Entirety. 

The  owner  has  the  whole  of  each  year  to  do  his  $100  worth 
of  work  or  make  his  $100  worth  of  improvements. — Belk  v. 
Mcagher,  3  Mont.  65,  1  M.  R.  522;  Atkins  v.  Hendree,  1  Ida. 
107,  2  M.  R.  328;  Mills  v.  Fletcher,  100  Cal.  142,  34  P.  637, 
l'?  M.  R.  671. 

It  therefore  follows  that  if,  for  instance,  he  has  expended 
$100  during  the  first  month  of  the  first  year  he  may  wait 
until  the  twelfth  month  of  the  second  year  before  he  does  his 
second  year's  work.  That  such  is  the  law  admits  of  no  doubt 
upon  the  reading  of  the  Act.  At  the  same  time  the  dispo- 
sition to  take  advantage  of  this  fact  leads  to  delays  which 


ANNUAL  LABOR.  121 

often  ultimate  in  allowing  the  whole  time  to  pass  by  and  the 
claim  to  become  liable  to  relocation. 

Who  May  Perform. 

Work  done  by  any  party  in  privity  of  title  with  the  owner 
(Godfrey  v.  Faust,  101  N.  W.  718,  105  N.  W.  460),  and 
even  work  gratuitously  contributed,  will  count. — Anderson  v. 
Caughey,  3  Cal.  App.  22,  84  P.  223. 

By  Statute  in  New  Mexico  any  lien  holder  may  do  the 
work  to  protect  his  incumbrance. — McVeigh  v.  Veig,  16  N.  M. 
453,  117  P.  857.  And  we  have  no  doubt  that  such  work  wmild 
avail  without  the  aid  of  any  Statute.  A  stockholder  may  per- 
form the  annual  labor. — Musser  v.  Fitting,  26  Cal.  App.  746, 
148  P.  536. 

What  Counts  for  Improvements. 

Any  work  done  for  the  purpose  of  discovering  minerals  is 
improvements  within  the  spirit  of  the  statute. — U.  8.  v.  Iron- 
Silver  Co.,  24  F.  568.  Road  building  counted  as  annual  labor. 
—Doherty  v.  Morris,  17  Colo.  105,  28  P.  85 ;  Mt.  Diablo  Co.  v. 
Callison,  5  Sawy.  439,  9  M.  R.  616,  Fed.  Cas.  No.  9886;  Sexton 
v.  Washington  Co.,  55  Wash.  380,  104  P.  614.  Flumes,  drains 
or  the  turning  of  a  stream  or  the  sinking  of  a  common  shaft 
will  count.— St.  Louis  Co.  v.  Kemp,  104  U.  S.  636,  26  L.  Ed. 
875, 11  M.  R.  692. 

The  value  of  rails  laid,  powrder,  fuse,  candles,  the  value  of 
meals  furnished  and  the  reasonable  compensation  for  use  of 
tools  are  to  be  considered. — Fredricks  v.  Klauser,  52  Ore.  110, 
96  P.  679. 

Work  done  for  railroad  company  in  association  with  mining 
company  held  for  benefit  of  located  claims. — Florence-Rae  Co. 
v.  Kimbel,  85  Wash.  162,  147  P.  881. 

In  estimating  the  value  of  work  done  by  hydraulic  pipe 
the  value  of  the  use  of  the  entire  system  is  to  be  considered. 
— Anderson  v.  Robinson,  63  Ore.  228,  126  P.  988,  127  P.  546. 


122  ANNUAL  LABOR. 

Watchman. 

Where  a  mine  is  idle,  the  time  and  labor  of  a  watchman  or 
custodian  may  be  treated  as  annual  labor. — Lockhart  v.  Rol- 
lins, 2  Ida.  540,  21  P.  4l3,  16  M.  R.  16 ;  Altoona  Co.  v.  Integral 
Co.,  114  Cal.  100,  45  P.  1047 ;  Tripp  v.  Dunphy,  28  L.  D.  14. 
Pay  of  watchman  allowed  where  there  is  portable  property 
needing  protection. — Kinsley  v.  New  Vulture  Co.,  11  Ariz.  66, 
90  P.  438.  Otherwise  where  there  is  no  such  property. — Gear 
v.  Ford,  4  Cal.  App.  556,  88  P.  600;  Fredricks  v.  Klauser, 
supra. 

The  wages  of  a  watchman  may  be  counted  when  needed 
while  mine  temporarily  idle,  but  the  salary  of  a  superintendent 
as  a  mere  keeper  can  not  be  allowed  to  go  on  indefinitely  as  a 
substitute  for  annual  labor. — Merchants  Bank  v.  McKeown, 
60  Or.  325,  119  P.  334. 

What  Will  Not  Count. 

A  house  for  the  use  of  the  miners  built  200  feet  away  from 
the  claim  can  not  be  considered  as  annual  labor. — Remmington 
v.  Baudit,  6  Mont.  138,  9  P.  819. 

The  expense  of  taking  timbers,  lumber,  bucket,  rope  and 
tools  to  the  mine — all  carried  away  after  slight  use,  if  used  at 
all — will  not  avail  for  annual  labor. — Honaker  v.  Martin,  11 
Mont.  91,  27  P.  397, 17  M.  R.  404. 

Material  taken  to  a  claim  but  not  used  does  not  count,  nor 
the  price  paid  for  working  animals,  nor  the  cost  of  tools  and 
boarding  outfit. — Fredricks  v.  Klauser,  supra. 

Cutting  firewood  and  pasturing  do  not  count. — Richen  v. 
Davis,  76  Or.  311,  148  P.  1130.  Wages  of  cook  and  wood- 
chopper  disallowed. — Merchants  Bank  v.  McKeown,  60  Or. 
325,  119  P.  334. 

Dumping  tailings  on  a  claim  is  no  improvement. — Jackson 
v.  Roby,  109  U.  S.  440,  27  L.  Ed.  990,  3  Sup.  Ct.  Rep.  301. 
Traveling  and  expenses  in  getting  ready  to  go  to  work  can  not 
be  considered.— McGarrity  v.  Byington,  12  Cal.  426,  2  M.  R. 


ANNUAL  LABOR.  123 

311;  DuPrat  v.  James,  65  Cal.  555,  4  P.  562,  15  M.  R.  341. 
Nor  work  done  by  third  parties  and  bought  in. — Little  Gun- 
nell  Co.  v.  Kwiber,  Fed.  Gas.  No.  8402,  1  M.  R.  536.  But  see 
post,  p.  594. 

Taking  specimens  for  assays  will  not  count  for  annual  labor 
nor  as  a  legitimate  resumption  of  work. — Bishop  v.  Baisley, 
28  Or.  119,  41  P.  936.  The  cost  of  sharpening  tools  may  or 
may  not  be  a  legitimate  item,  according  to  circumstances. — 
Hirschler  v.  McKendricks,  16  Mont.  211,  40  P.  290. 

Work  Done  Outside  of  Claim  or  on  Group. 

Work  done  beyond  the  lines  will  count  when  it  has  direct 
reference  to  the  drainage  or  development  of  the  claim. — 
Packer  v.  Heaton,  9  Cal.  569,  4  M.  R.  447 ;  Kramer  v.  Settle, 
1  Ida.  485,  9  M.  R.  561 ;  Mt.  Diablo  Co.  v.  Callison,  5  Sawy. 
439,  Fed.  Gas.  No.  9886,  9  M.  R.  616;  Klopenstine  v.  Hays, 

20  Utah  45,  57  P.  712;  17  L.  D.  190.  Whether  the  work  done 
on  one  is  really  for  the  benefit  of  the  group  is  for  the  jury  to 
say.— Wilson  v.  Triumph  Co.,  19  Utah  66,  75  Am.  St.  Rep. 
718,  56  Pi  300;  Treka  Co.  v.  Knight,  133  Cal.  544,  65  P.  1092, 

21  M.  R.  478.    Where  sundry  claims  are  worked  together  as 
one  group,  the  development  work  though  confined  to  a  single 
claim,  may  count  for  all. — Chambers  v.  Harrington,  111  U.  S. 
350,  28  L.  Ed.  452,  4  Sup.  Ct.  Rep.  428 ;  Jupiter  Co.  v.  Bodie 
Co.,  11  F.  666,  4  M.  R.  413,  7  Sawy.  96 ;  St.  Louis  Co.  v.  Kemp, 
104  U.  S.  636,  26  L.  Ed.  875,  11  M.  R.  692;  DeNoon  v.  Morri- 
son, 83  Cal.  163,  23  P.  374, 16  M.  R.  33,  23  L.  D.  267. 

Contiguous  Claims. 

There  are  several  cases  which  hold  that  the  claims  must  be 
contiguous  in  order  that  work  done  on  one  may  count  for 
another.— Gird  v.  California  Oil  Co.,  60  F.  531,  18  M.  R.  45  ; 
Eoyston  v.  Miller,  76  F.  50, 18  M.  R.  418 ;  Fredricks  v.  Klauser, 
supra.  But  Altoona  Co.  v.  Integral  Co.,  18  M.  R.  410,  114  Cal. 
100,  45  P.  1047,  is  to  the  contrary  and  there  is  nothing  in  the 
wording  of  the  Congressional  Act  which  compels  them  to  be 


124  ANNUAL  LABOE. 

contiguous  except  in  the  case  of  oil  placers.  In  Chambers  v. 
Harrington,  supra,  the  opinion  assumes  that  they  must  be  con- 
tiguous. 

In  Morgan-  v.  Myers,  159  Gal.  187, 113  P.  153,  the  claims  were 
apparently  not  contiguous  and  further  were  separated  by  a 
ravine  so  that  work  on  one  could  not  benefit  the  other.  The 
court  held  that  work  on  one  could  not  be  counted  for  both. 

Claims  which  merely  corner  on  each  other  are  not  contiguous. 
—Anvil  Co.  v.  Code,  182  F.  205, 105  C.  C.  A.  45. 

Burden  of  Proof  Shifts. 

The  work  may  be  done  on  an  adjoining  patented  claim  but 
when  done  on  any  kind  of  claim  outside  the  bounds  of  the  claim 
intended  to  be  protected,  the  burden  of  proof  is  on  the  party 
asserting  that  it  was  for  the  benefit  of  such  claim  and  was 
done  as  annual  labor  for  the  protection  of  such  claim. — Hall  v. 
Kearny,  18  Colo.  505,  33  P.  373,  17  M.  R.  594;  Sherlock  v. 
Leighton,  9  Wyo.  297,  63  P.  580,  934 ;  Copper  Mt.  Co.  v.  Butte 
Co.,  39  Mont.  487, 133  Am.  St.  Rep.  595,  104  P.  540;  Fredricks 
v.  Klauser,  52  Or.  110,  96  P.  679;  Merchants  Bank  v.  Mc- 
Keown,  60  Or.  325,  119  P.  334. 

The  Question  of  "Benefit  to  the  Claim"  Can  Only  Arise  When 

the  work  itself  was  done  on  some  one  claim  and  it  is  sought 
to  utilize  it  for  the  benefit  of  another  claim  held  by  the  same 
party  or  where  it  is  outside  the  claim  proper  in  the  shape 
of  road,  building,  ditch,  etc.  For  stoping,  or  any  work  what- 
ever done  upon  and  within  the  lines  of  the  claim  in  the  nature 
of  mining  or  preparing  for  mining  is  strictly  within  the  terms 
of  the  statute.— Wailes  v.  Dames,  158  F.  667,  164  F.  397,  90 
C.  C.  A.  385.  A  cross-cut  started  on  the  claim,  above  the  vein, 
intended  to  benefit  itself  and  a  claim  further  up,  would 
count  for  work  on  both  claims;  upon  the  claim  on  which  it 
started  because  within  its  lines,  and  for  the  claim  above 
because  driven  for  its  benefit. 


ANNUAL  LABOR.  125 

Assessment  work  outside  the  claim  must  be  of  value  to  the 
claim  intended  to  be  protected. — Little  Dorrit  Co.  v.  Arapa- 
hoe  Co.,  30  Colo.  431,  71  P.  389. 

The  Court  should  not  substitute  its  judgment  for  that  of 
the  mine  owner  as  to  the  expediency  of  the  plan  of  work 
unless  it  could  have  no  reasonable  adaptation  to  the  end  in 
view,  but  on  the  facts  of  the  case  it  was  held  that  the  work  was 
too  far  away  to  count  as  any  possible  improvement  on  the 
claims  in  question. — Copper  Mt.  Co.  v.  Butte  Co.,  39  Mont. 
487,  133  Am.  St.  Rep.  595,  104  P.  540. 

On  the  other  hand,  work  on  one  of  seven  or  eight  claims 
was  allowed  to  count  for  all  when  the  possibility  of  benefit 
to  the  other  claims  was  extremely  remote. — Nevada  Co.  v. 
Spriggs,  41  Utah  171,  124  P.  770;  STRAUP,  J.,  dissented. 

Un watering  the  Mine. 

The  case  of  Evalina  Co.  v.  Tosemite  Co.,  15  Cal.  App.  714, 
115  P.  946,  presents  a  peculiar  state  of  facts.  The  work 
'done  by  the  parties  alleged  to  be  in  default  "was  done  for 
the  sole  purpose  of  unwatering  the  mine  so  that  it  could  be 
examined  by  a  prospective  purchaser.  They  testified  that  it 
was  not  done  as  assessment  work  nor  was  it  intended  to  be 
so  considered." 

The  Court  said  that  it  was  not  such  work  "as  is  contem- 
plated by  the  United  States  Statute." 

Were  it  not  for  the  voluntary  waiver  contained  in  the 
above  quotation  we  would  consider  the  ruling  debatable  and 
even  then  it  seems  analogous  to  the  case  of  Crary  v.  Dye,  208 
U.  S.  515,  52  L.  Ed.  595,  28  Sup.  Ct.  Rep.  360,  where  a  man 
was  held  not  bound  by  an  admission  that  he  had  no  title 
when  he  was  under  a  misapprehension  of  the  law  and  his 
title  in  fact  was  good. 

The  unwatering  of  a  mine  is  as  much  work  as  drilling  or 
blasting  and  the  fact  that  it  was  done  to  put  the  mine  in 
shape  to  show  to  a  buyer  would  not  lessen  the  cost  nor 
diminish  the  labor. 


126  ANNUAL  LABOR. 

And  yet  there  is  much  to  be  said  on  the  other  side.  It  is 
not  so  much  work  on  the  mine  as  it  is  work  to  get  ready  to 
work  on  the  mine  (which  is  not  computed  as  part  of  the  annual 
labor)  and  extreme  cases  can  be  imagined  where  a  man 
might  unwater  his  mine  from  year  to  year  without  any 
added  development  whatever. 

Diverse  Ownerships  in  Group  or  in  Tunnel. 

Work  done  by  tunnel  intended  to  cut  two  claims  owned 
by  the  same  person  is  good  to  hold  both. — Book  v.  Justice  Co., 
58  F.  107,  17  M.  R.  617.  Work  done  on  one  of  a  group  held 
in  different  names  but  really  owned  in  common  has  been 
ruled  to  avail  for  all.—Eberle  v.  Carmichael,  8  N.  M.  169,  42 
P.  95.  And  we  see  no  reason  why  a  tunnel  owned  in  common 
and  worked  by  the  joint  labor  or  contributions  of  the  several 
owners  of  different  claims  intended  to  be  cut  by  such  tunnel 
should  not  avail  to  protect  each  claim  provided  the  full  $100 
is  expended  for  each  claim. — Fissure  Co.  v.  Old  Susan  Co.,  22 
Utah  438,  63  P.  587. 

A  blacksmith  shop  used  for  the  benefit  of  the  claim  in  con- 
troversy, and  for  other  claims,  can  not  be  counted  for  annual 
labor  with  no  proof  of  how  much  of  its  value  could  be  appor- 
tioned to  the  claim  in  controversy. — Upton  v.  Santa  Rita  Co., 
14  N.  M.  96,  89  P.  276. 

The  questions  of  group  work  and  outside  work  are  fully 
considered  by  the  Supreme  Court  of  South  Dakota  in  Haw- 
good  v.  Emery,  22  S.  D.  573,  133  Am.  St.  Rep.  941,  119 
N.  W.  177.  The  case  in  particular  holds  that  work  done  on 
a  claim  owned  by  one  party  alone  can  not  avail  for  work  on 
a  neighboring  claim  in  which  he  has  an  undivided  interest 
although  such  work  might  benefit  such  claim.  The  opinion 
seems  to  intimate  that  such  work  might  count  for  the  claims 
held  in  common  if  there  had  been  an  agreement  to  such 
effect. 

ANNUAL  LABOR  BY  TUNNEL.    See  p.  319. 


ANNUAL  LABOB.  127 

Amount,  How  Estimated — District  Rules. 

As  to  such  district  rules  as  attempt  to  fix  the  value  of  a 
day's  labor  above  its  real  cost  in  estimating  the  amount  of 
work  done,  they  amount  to  absolutely  nothing.  The  "fiat" 
does  not  alter  the  "fact."  The  true  measure  is  the  real 
expenditure.— Wright  v.  Killian,  132  Cal.  56,  64  P.  98,  21 
M.  R.  211;  Penn  v.  Oldliauber,  24  Mont.  287,  61  P.  649; 
Woody  v.  Barnard,  69  Ark.  579,  65  S.  W.  100 ;  Ware  v.  White, 
82  Ark.  220,  108  S.  W.  831.  And  if  the  work  has  been  done, 
or  the  materials  furnished  by  the  owner  himself,  the  measure 
of  value  is  what  it  would  have  cost  to  procure  the  same  labor 
and  materials  from  a  second  party — in  other  words,  the 
market  value  of  the  labor  and  materials. — Quimby  v.  Boyd,  8 
Colo.  194,  342,  6  P.  462,  7  P.  288.  And  its  enhancing  the  value 
of  the  claim  is  no  test. — Mattingly  v.  Lewisohn,  13  Mont.  508, 
35  P.  Ill,  17  M.  R.  693. 

The  test  is  what  the  work  was  worth,  rather  than  what  was 
paid  for  it,  but  what  was  paid  for  it  goes  to  prove  its  value. — 
Stolp  v.  Treasury  M.  Co.,  38  Wash.  619,  80  P.  817;  McCor- 
mick  v.  Parriott,  33  Colo.  382,  80  P.  1044.  A  party  can  not 
put  an  arbitrary  price  on  his  own  labor. — McKay  v.  Neussler, 
148  F.  86,  78  C.  C.  A.  154. 

The  Fact  that  the  Work  has  Not  Yet  Been  Paid  For  Does  Not 

invalidate  its  sufficiency  to  count  as  annual  labor. — Lock- 
hart  v.  Rollins,  2  Ida.  540,  21  P.  413,  16  M.  R.  16 ;  Coleman  v. 
Curtis,  12  Mont.  301,  30  P.  266. 

Full  payment  for  the  work  will  not  save  the  claim  where 
the  party  hired  to  do  it  makes  only  a  pretense  of  performance. 
—Protective  M.  Co.  v.  Forest  City  Co.,  51  Wash.  643,  99 
P.  1033. 

Rightful  Owner  Out  of  Possession. 

Where  possession  is  wrongfully  taken  and  withheld,  the 
rightful  owner  is  excused  from  the  necessity  of  doing  the 
work.— Utah  Co.  v.  Dickert  Co.,  6  Utah  183,  5  L.  R.  A.  25-9, 


128  ANNUAL  LABOR. 


21  P.  1002 ;  Slavonian  Co.  v.  Perasich,  1  F.  331,  7  Sawy.  217, 
1  M.  R.  541 ;  Mitts  v.  Fletcher,  100  Cal.  142,  34  P.  637,  17 
M.  R.  671;  Trevaskis  v.  Peard,  111  Cal.  599,  44  P.  246,  18 
M.  R.  353 ;  Field  v.  Tanner,  32  Colo.  278,  75  P.  916. 

A  relocator  can  not  take  advantage  of  the  fact  that  the 
work  was  not  done  when  prevented  by  his  own  act. — Garvey 
v.  Elder,  21  S.  D.  77,  130  Am.  St.  Rep.  704,  109  N.  W.  508. 

Performance  of  Annual  Labor  After  the  Year  Has  Expired — 
Two  Parties  Essential  to  Forfeiture. 

The  neglect  to  do  the  annual  labor  required  by  the  United 
'States  government  by  no  means  works  a  forfeiture  of  the 
claim.— Lakin  v.  Sierra  Suites  Co.,  25  F.  343,  11  Sawy.  231 ; 
Lacey  v.  Woodward,  5  N.  M.  583,  25  P.  785.  To  illustrate :  •  If 
a  lode  was  located  in  1890  and  after  that  year  no  annual 
work  was  done  until  1896  (when  a  period  of  five  full  years 
would  have  intervened),  and  in  1896  the  owner  enters  and 
performs  $100  worth  of  work  for  that  year,  he  continues  to 
be  the  owner  of  the  claim,  and  his  title  relates  back  to  the 
original  location  of  1890;  provided  always,  that  the  lode  has 
not  been  relocated  in  the  meantime. — Crown  Point  M.  Co.  v. 
Crismon,  39  Or.  364,  21  M.  R.  406,  65  P.  87 ;  Peachy  v.  Gaddis, 
14  Ariz.  214,  127  P.  739. 

It  requires  two  parties  to  make  a  forfeiture  absolute :  First, 
the  party  who  abandons,  and,  second,  the  party  who  relocates. 
The  second  party  therefore  must  take  advantage  of  the  first 
party's  default  before  such  default  can  enure  to  the  second 
party's  benefit. — Little  Gunnell  Co.  v.  Kimber,  Fed.  Gas.  No. 
8402, 1  M.  R.  536 ;  Seals  v.  Cone,  27  Colo.  473,  83  Am.  St.  Rep. 
92,  20  M.  R.  591,  62  P.  948;  Madison  v.  Octave  Oil  Co.,  154 
Cal.  768,  99  P.  176. 

The  fact  that  failure  to  do  the  work  does  not  ipso  facto 
work  a  forfeiture  and  the  fact  that  advantage  of  the  default 
must  be  taken  by  some  adverse  party  are  important  in  several 
classes  of  cases: 


ANNUAL  LABOR.  129 

First — Where  the  work  done  before  the  neglect  is  necessary 
to  complete  the  $500  worth  of  improvements  required  before 
patenting. 

Second — Where  in  a  suit  of  ejectment  between  two  claims 
it  is  necessary  to  prove  priority  and  carry  the  title  back  to 
the  original  location. 

Third — Where  a  party  has  neglected  to  do  his  annual  work 
and  a  third  party  has  entered  for  purpose  of  relocation. 

Fourth — The  fact  that  neglect  to  do  one  or  more  years' 
labor  does  not,  ipso  facto,  operate  as  a  forfeiture  is  of  special 
importance  in  the  case  of  overlapping  claims,  where  the 
junior  claim  has  been  worked  and  the  senior  claim  has  not 
been  worked. 

1.  Where  the  Work  Done  Before  the  Neglect  Is  Necessary 

to  Complete  the  $500  Worth  of  Improvements  Required 
Before  Patenting. 

If  failure  to  do  one  year's  work  operates,  ipso  facto,  to 
defeat  the  location,  in  such  case  the  title  would  have  to  date 
from  the  date  of  resumption;  in  fact,  a  new  location  would 
have  to  be  made  by  the  owner.  But  the  failure  not  having 
been  taken  advantage  of  in  due  time,  the  old  title  remains, 
dates  from  original  discovery,  and  consequently  old  work 
and  new  count  together  as  improvements  on  the  claim  for 
purpose  of  patenting. 

2.  Where  It  Is  Essential  to  Carry  the  Title  Back  to  Dis- 

covery. 

The  remarks  of  the  foregoing  paragraph  apply  also  to  this 
heading.  The  doctrine  of  relation  carries  a  title  back  to  the 
first  step  in  its  inception,  always  excepting  where  an  adverse 
right  has  intervened.  As  the  failure  of  itself  works  no 
forfeiture,  the  continuity  in  this  case  is  not  broken.  A  loca- 
tion, however,  made  over  a  claim  where  the  work  has  not  been 
done  (before  bona  fide  resumption  by  the  owner)  would  break 
this  continuity  and  would  take  the  conflict,  whether  it  pur- 


130  ANNUAL  LABOR. 

ported  to  be  a  relocation  of  the  defaulting  claim  or  only  inci- 
dentally took  some  of  its  ground. 

It  has  been  held  that  where  work  was  not  done  and  the 
ground  located  by  a  third  party  who  later  failed  to  keep  up 
his  work  and  the  original  owner  returns  and  resumes  work, 
the  original  title  remains  valid,  notwithstanding  the  inter- 
vening location. — Justice  M.  Co.  v.  Barclay,  82  F.  554,  19 
M.  R.  68;  Klopenstine  v.  Hays,  20  Utah  45,  57  P.  712.  See 
2  Lindley,  3d  Ed.,  Sec.  651. 

3.  Where  a  Third  Party  Has  Begun  to  Relocate — Resump- 
tion by  Owner. 

The  words  of  the  Act  relative  to  this  class  of  cases  are  as 
follows : 

Provided  that  the  original  locators,  their  heirs,  assigns,  or  legal  repre- 
sentatives, have  not  resumed  work  upon  the  claim  after  failure  and 
before  such  location. 

If  the  location  of  the  third  party  is  complete  before  the  re- 
entry of  the  original  owner,  of  course  the  original  owner  is 
too  late.  If,  on  the  other  hand,  the  original  owner  has  bona 
fide  resumed  work  before  the  attempted  location  over  his 
ground,  his  original  title  becomes  revested  the  moment  he  has 
completed  an  amount  of  work  equivalent  to  that  required  for 
the  previous  year.  But  where  the  third  party  has  entered, 
and  before  he  completes  his  location  the  original  owner  also 
enters  and  resumes  work,  the  question  remains:  Is  such  re- 
entry of  the  owner  sufficient  to  defeat  the  intervening  claim- 
ant? The  Act  says  that  the  owner  may  resume  work  at  any 
time  "before  such  location."  The  location  of  the  intervenor 
is  not  complete  until  he  has  done  a  series  of  acts,  usually 
requiring  several  days  to  consummate.  The  locator  must 
sink  a  shaft  ten  feet  in  depth,  and  set  his  stakes.  In  the 
meantime  has  the  original  owner  the  right  to  resume  work? 
It  was  so  decided  in  the  case  of  Pharis  v.  Muldoon,  75  Cal. 
284,  15  M.  R.  348,  17  P.  70.  There,  however,  the  relocator 
had  entered  and  posted  his  notice  just  after  midnight  of  the 
last  day  of  the  year  and  the  original  owner  resumed  work  by 


ANNUAL  LABOR.  131 

the  usual  hour  for  honest  labor  on  the  morning  of  the  first. 
The  relocator  had  barely  a  technical  case,  if  any.  In  an- 
other instance,  on  facts  much  stronger  for  the  second  party 
(Gonu  v.  Russell,  3  Mont.  358,  12  M.  R.  630),  it  was  dis- 
tinctly held  that  the  re-entry  of  the  original  owner  before 
the  newcomer's  location  was  completed  would  save  the  for- 
feiture. The  same  court  reaffirms  this  ruling  in  McKay  v. 
McDougall,  25  Mont.  258,  87  Am.  St.  Rep.  395,  64  P.  669. 

On  the  contrary,  HALLETT,  J.,  in  the  case  of  Little  Gunnell 
Co.  v.  Kimber,  Fed.  Gas.  No.  8402,  1  M.  R.  536,  held  that  the 
party  attempting  to  take  up  abandoned  property  has  the 
same  period  of  three  months  to  complete  his  location,  which  is 
allowed  by  law  to  a  discoverer ;  and  Pelican  Co.  v.  Snodgrass, 
9  Colo.  339, 12  P.  206,  is  to  the  same  effect. 

We  have  little  doubt  of  the  correctness  of  the  latter  opinion. 
"The  condition  of  development  should  be  attached  to  every 
mine ;  and  courts  should,  as  far  as  consistent  with  legal  prin- 
ciples, maintain  the  construction  of  mining  customs  which 
accomplish  this  end." — King  v.  Edwards,  1  Mont.  235,  4  M.  R. 
480 ;  Russell  v.  Brosseau,  65  Cal.  605,  4  P.  643. 

In  Belcher  Co.  v.  Deferrari,  62  Cal.  160,  plaintiff,  the 
original  owner,  did  only  .one-half  the  required  amount  in  1880. 
In  January,  1881,  he  did  $24  worth  of  work  on  two  claims. 
Defendant  relocated  in  August,  1881.  Held:  That  the  plain- 
tiff had  resumed  work  and  was  entitled  to  recover.  Such  a 
decision  is  only  trifling  with  the  law  and  the  rights  of  parties 
based  on  the  law.  On  a  case  of  like  facts  the  contrary  has 
since  been  held  by  the  same  court. — McCormick  v.  Baldunn, 
104  Cal.  227,  37  P.  903. 

In  the  well  considered  opinion  in  Honaker  v.  Martin,  11 
Mont.  91,  27  P.  397,  17  M.  R.  434,  the  cases  on  this  subject 
are  reviewed  by  BLAKE,  C.  J.,  and  it  was  decided  that  where 
a  resumption  takes  place  it  must  be  substantial,  and  result 
in  the  prompt  performance  of  at  least  the  full  amount  which 
should  have  been  done  the  previous  year.  It  does  not  decide 
in  terms  as  in  the  Pelican  case  and  Gunnell  case,  that  the 


132  ANNUAL  LABOR. 

resumption  is  too  late  when  the  first  act  of  relocation  has 
been  initiated,  but  it  bears  out  the  argument  to  the  same 
result. 

The  owners  of  the  Nellie  were  on  the  ground  December  31, 
and  resumed  work  on  January  1.  The  same  day  the  Equate 
was  located  over  the  Nellie.  The  Court  held  that  such  loca- 
tion could  not  be  initiated  while  the  ground  still  remained 
unforfeited,  the  owners  having  resumed  the  work,  though  they 
afterwards  failed  to  complete  the  full  assessment. — Jordan  v. 
Duke,  6  Ariz.  55,  53  P.  197. 

Labor  when  resumed  must  be  prosecuted  with  reasonable 
diligence  till  the  $100  is  complete. — Hirschler  v.  McKendricks, 
16  Mont.  211,  40  P.  290. 

Where  a  claimant  is  at  work  on  the  last  day  of  the  year 
intending  to -continue  work  on  the  next  day,  a  party  who 
attempts  to  relocate  before  the  usual  hour  to  start  work  is 
a  trespasser.— Willitt  v.  Baker,  133  F.  937. 

Where  a  party  is  at  work  on  January  1  and  continues  at 
work,  it  makes  no  difference  that  the  work  for  the  elapsed 
year  was  not  done.  The  resumption  saves  the  claim. — Ander- 
son v.  Robinson,  63  Or.  228,  126  P.  988,  127  P.  546. 

Where  resumption  of  work  is  relied  on  the  burden  of 
proof  is  on  the  original  owner  to  show  that  it  preceded  the 
relocation.— McKnight  v.  El  Paso  Co.,  16  N.  M.  721,  A.  C. 
1912D,  1309,  120  P.  695. 

No  Resumption  in  Alaska. 

Under  the  Special  Act  concerning  annual  labor  in  Alaska, 
p.  114,  the  work  must  be  done  during  the  year  and  resump- 
tion will  not  save  the  claim. — Tlwtcher  v.  Brown,  190  F.  708, 
111  C.  C.  A.  436. 

4.  Work  Neglected  on  Senior  Claim  Overlapped  by  Junior 
Claim. 

Where  a  local  statute  provides  for  filing  relocation  cer- 
tificate to  take  in  the  overlap  of  the  senior  claim,  which  has 


e 


ANNUAL  LABOR.  133 

become  abandoned,  we  have  no  doubt  that  such  filing  is 
necessary  to  give  it  to  the  junior  claimant. — Moorhead  v. 
Erie  M.  Co.,  43  Colo.  408,  96  P.  253.  Even  without  such 
statute  it  was  generally  conceded  that  the  failure  did  not  ipso 
facto  give  it  to  the  junior  claimant. — 2  Lindley  3d  Ed.,  Sec. 
363;  1  Snyder,  Sec.  574.  It  was  so  expressly  decided  in  Os- 
camp  v.  Crystal  R.  Co.,  58  F.  293,  7  C.  C.  A.  233,  17  M.  R. 
651.  In  numberless  instances  the  two  claimants,  being  on 
friendly  relations,  the  junior  claimant  has  no  desire  to  take 
advantage  of  the  failure  of  the  senior  claimant  to  do  his 
work  for  a  single  year.  Does  the  law  then  give  it  to  him 
against  his  will?  The  only  authority  we  know  of  supporting 
such  proposition  is  an  isolated  dictum  in  McPherson  v.  Julius, 
17  S.  D.  98,  95  N.  W.  235. 

Three  Successive  Locations. 

There  are  three  cases  in  the  Federal  Supreme  Court,  Lavag- 
nino  v.  Uhlig,  198  U.  S.  443,  49  L.  Ed.  1119,  25  Sup.  Ct.  Rep. 
716 ;  Brown  v.  Gurney,  201  U.  S.  184,  50  L.  Ed.  717,  26  Sup. 
Ct.  Rep.  509 ;  Farrell  v.  Lockhart,  210  U.  S.  142,  16  L.  R.  A. 
(N.  S.)  162,  52  L.  Ed.  994,  28  Sup.  Ct.  Rep.  681,  in  each  of 
which  there  was  a  first,  second  and  third  location  of  sub- 
stantially the  same  ground,  the  second  being  made  while  the 
first  was  a  valid  subsisting  claim,  but  which  later  was  aban- 
doned or  became  forfeited.  The  question  then  arises :  Did  the 
second  claim,  initiated  by  trespass  upon  the  rights  of  the 
first,  become  valid  upon  the  legal  decease  of  the  first  ?  Or,  did 
the  third,  which  was  not  begun  until  the  lapse  of  all  title  in  the 
first  claim,  become  the  better  title? 

In  the  Brown  case  the  south  700  feet  of  the  Kohnyo  lode,  by 
certain  proceedings  in  the  Land  Office,  became  vacant  ground 
on  June  14,  1898.  The  Scorpion  had  been  located  over  the 
same  area  in  May,  while  the  Kohnyo  was  still  a  valid  claim. 
The  Hobson's  Choice  was  not  located  until  after  June  14.  The 
Court  held  that  the  Scorpion  location  was  void,  that  the  loss 
of  the  Kohnyo  title  did  not  enure  to  benefit  the  Scorpion,  and 


134  ANNUAL  LABOR. 

that  the  Hobson's  Choice,  the  first  location  after  the  ground 
had  reverted  to  the  public  domain,  was  the  winning  title. 

In  the  Farrell  case  the  South  Mountain  lode  was  located  in 
1900,  the  Cliff  lode  in  1901,  while  the  S.  M.  lode  was  not  in 
default  as  to  annual  labor.  The  Divide  lode  was  located  in 
1903  after  the  S.  M.  lode  had  failed  to  do  any  work  for  1901 
or  1902.  The  opinion  cites  the  Lavagnino  case  and  says  it 
should  be  qualified  so  as  to  allow  the  third  location  to  attack 
the  second  location  on  the  ground  that  it  was  a  trespass  on  the 
first  location. 

In  the  Lavagnino  case  the  Levi  P.  lode  was  the  first  located. 
While  it  was  a  valid  subsisting  claim  the  Uhlig  lode  was 
located  over  it.  The  Uhlig  was  therefore  at  the  date  of  its 
location  not  a  valid  claim.  After  the  year  for  annual  labor 
had  expired,  and  no  labor  performed,  the  Yes  You  Do  lode 
was  located  over  the  same  ground.  The  Uhlig  lode  applied 
for  patent  and  the  Levi  P.  lode  adversed.  The  Yes  You  Do 
lode  filed  no  adverse.  The  Court  held  that  the  conceded  rule 
that  upon  abandonment  the  ground  became  public  domain 
did  not  apply  where  an  application  for  patent  had  been  made 
and  the  abandoned  lode  did  not  adverse. 

The  Brown  and  Farrell  cases  are  consistent  with  each  other 
and  with  the  basic  case  of  Belk  v.  Meagher  which  started  the 
proposition  that  no  valid  claim  could  be  initiated  within  the 
lines  of  a  prior  subsisting  claim,  but  the  Lavagnino  case  dis- 
carded that  rule. 

The  Lavagnino  case  was  fully  analyzed  in  Nash  v.  Mc- 
Namara,  30  Nev.  114, 133  Am.  St.  Rep.  694, 16  L.  R.  A.1  (N.  S.) 
168,  93  P.  405,  and  was  cited  cautiously  in  Montagne  v. 
Labay,  2  Alaska  575.  But  it  is  now  a  matter  of  legal  retro- 
'  spect  and  was  set  at  rest  by  Swanson  v.  Sears,  224  U.  S.  180, 
56  L.  Ed.  721,  32  Sup.  Ct.  Rep.  455;  Lindley,  3d  Ed.,  Sec. 
645A. 

In  this  Swanson  case  the  Emma  was  located  in  1881.  While 
it  remained  a  valid  location  the  Independence  was  located  on 
a  discovery  on  Emma  ground.  The  Emma  failed  to  do  its 


ANNUAL  LABOR.  135 

work  for  1903  and  was  relocated  by  its  owner  in  1904.  The 
Court  held  that  the  Independence,  being  originally  void,  was 
not  validated  by  any  default  or  failure  of  title  on  the 
Emma.  It  affirms  the  case  below  as  reported  in  17  Ida.  321, 
105  P.  1059,  under  the  style  of  Swanson  v.  Kettler. 

A  location  within  the  lines  of  a  senior  claim  is  void,  and 
subsequent  abandonment  of  the  senior  claim  does  not  make 
the  junior  valid.— Street  v.  Delta  Co.,  42  Mont.  371,  112  P. 
702 ;  Moorhead  v.  Erie  Co.,  43  Colo.  408,  96  P.  253. 

Failure  to  perform  for  one  year  with  relocation  by  stranger 
who  defaulted  does  not  destroy  the  old  title. — Richen  v.  Davis, 
76  Or.  311,  148  P.  1130. 

Although  the  burden  of  proof  is  usually  upon  a  party 
alleging  forfeiture,  yet,  when  it  is  alleged  that  a  certain  loca- 
tion is  void  because  made  upon  a  prior  valid  claim,  the 
burden  is  upon  the  party  making  such  allegation  to  prove  that 
such  prior  claim  was  not  forfeited. — Willison  v.  Eingivood, 
190  F.  550,  111  C.  C.  A.  401,  following  Farrell  v.  Lockwood, 
supra. 

The  Relocator  No  Trespasser. 

When  the  year  has  expired  and  the  work  has  not  been  done 
a  third  party  has  the  right  to  enter  within  its  boundaries 
and  relocate  the  claim,  although  the  original  owner  be  still 
(constructively)  in  possession. — DuPrat  v.  James,  65  Cal. 
555,  15  M.  R.  341,  4  P.  562;  Brown  v.  Oregon  King  Co.,  21 
M.  R.  485,  110  F.  728. 

A  Relocation  Begun  Before  the  Year  Expires  Is  Void. 

— Belk  v.  Meagher,  3  Mont.  65,  1  M.  R.  522.  An  entry  on 
ground  not  in  default  can  not  be  made  with  intent  to  make  a 
provisional  location,  to  be  asserted  if  the  original  locator 
fails  to  do  the  annual  labor. — Eooney  v.  Barnette,  200  F.  700, 
119  C.  C.  A.  116. 


136  ANNUAL  LABOB. 

Equity  of  the  Annual  Labor  Law. 

The  opposition  to  the  requirement  of  annual  labor  so  evi- 
dent when  it  was  first  imposed  has  long  since  yielded  to  a 
concession  of  its  equity  even  in  the  case  of  claims  located 
before  its  passage. 

The  holder  has  no  just  right  to  prevent  the  government 
disposing  of  such  claims  as  he  is  unwilling  or  unable  to  work, 
to  such  as  are  ready  to  assume  the  risk  and  develop  the  deposit, 
the  estate  of  the  holder  hot  being  absolute,  but  by  implied 
contract  and  general  mining  custom  conditioned  upon  develop- 
ment, of  which  development  the  government  has  merely  fixed 
the  amount  by  the  Act  of  1872,  and  that  at  a  reasonable  limit. 

Development  is  the  condition  upon  which  the  government 
allows  the  miner  to  hold  his  possessory  title  and  afterwards 
perfect  it  by  patent.— Erhardt  v.  Boaro,  113  U.  S.  527,  28 
L.  Ed.  1113,  5  Sup.  Ct.  Rep.  560,  15  M.  R.  472;  O'Reilly  v. 
Campbell,  116  U.  S.  418,  29  L.  Ed.  669,  6  Sup.  Ct.  Rep.  421 ; 
Kramer  v.  Settle,  1  Ida.  485,  9  M.  R.  561.  Nevertheless,  the 
Act  is  to  be  strictly  construed  against  forfeiture. — Emerson  v. 
McWhirter,  133  Cal.  510,  65  P.  1036,  21  M.  R.  470. 

It  is  no  objection  to  testimony  to  disprove  annual  labor 
that  it  is  negative  in  character;  it  is  necessarily  so.  The  evi- 
dence reviewed  and  held  to  outweigh  the  positive  testimony 
that  it  was  done.— First  Nat.  M.  Co.  v.  Altvater,  149  F.  393, 
79  C.  C.  A.  213.  Evidence  reviewed  and  held  proof  of  labor 
performed.— Smith  v.  Mt.  Gulch  Co.,  12  Ida.  219,  85  P.  918. 

Neglect  to  do  the  work  forfeits  the  claim,  although  the 
locator  remains  in  possession. — Goldberg  v.  Bruschi,  146  Cal. 
708,  81  P.  23. 

As  to  the  Plea  of  Forfeiture  for  Failure  to  Perform,  see  Page 
113.    In  adverse  claim  suits,  page  620. 

The  Burden  of  Proof  Is  Upon  the  Party  Asserting  That  the 

work  was  not  done. — Quigley  v.  Gillett,  101  Cal.  462,  35  P. 
1040, 18  M.  R.  68 ;  Hall  v.  Kearny,  18  Colo.  505,  17  M.  R.  594, 


ANNUAL  LABOR.  137 

33  P.  373 ;  Earns  v.  Kellogg,  117  Cal.  484,  49  P.  708 ;  Axiom 
Co.  v.  White,  10  S.  D.  198,  72  N.  W.  462 ;  Seals  v.  Cone,  27 
Colo.  473,  83  Am.  St.  Rep.  92,  20  M.  E.  591,  62  P.  948; 
Lancaster  v.  Coale,  27  Colo.  App.  495,  150  P.  821.  And  the 
proof  should  be  clear  and  convincing. — Strasburger  v.  Beecher, 

20  Mont.  143,  49  P.  740;  Dibble  v.  Castle  Chief  Co.,  9  S.  D. 
618,  70  N.  W.  1055 ;  Crown  Point  Co.  v.  Crismon,  39  Or.  364, 

21  M.  R.  406,  65  P.  87;  Upton  v.  Santa  Rita  Co.,  14  N.  M.  96, 
89  P.  275 ;  Gear  v.  Ford,  4  Cal.  App.  556,  88  P.  600.    As  to 
burden  of  proof  when  the  work  was  done  outside  the  claim, 
see  p.  124. 

The  question  whether  the  work  was  done  is  for  the  jury 
and  the  Court  can  not  take  it  from  them  when  there  was 
evidence  to  prove  it. — Knickerbocker  v.  Holla,  162  F.  318,  98 
C.  C.  A.  298. 

On  Rebuttal  the  Other  Side  May  Show  That  the  Work  Done 

off  the  claim  did  not  benefit  the  claim.  But  the  work  done 
need  not  be  that  which  would  be  most  beneficial  to  the  claim. — 
Sherlock  v.  Leighton,  9  Wyo.  297,  63  P.  580,  934. 

Proof  that  the  labor  in  question  had  been  applied  as  im- 
provements on  application  for  patent  on  another  claim  is 
admissible. — White  River  Co.  v.  Langston,  76  Ark.  420,  88 
S.  W.  971. 

Proof  of  Annual  Labor. 

E.  S.  Colo.  Sec.  4209. — Within  six  months  after  any  set  time  or  annual 
period  allowed  for  the  performance  of  labor  or  making  improvements 
upon  any  lode  claim  or  placer  claim,  the  person  on  whose  behalf  such  out- 
lay was  made,  or  some  person  for  him,  may  make  and  record  in  the 
office  of  the  recorder  of  the  county  wherein  such  claim  is  situate,  an  affi- 
davit in  substance  as  follows:  *  *  * 

The  continuation  of  the  section  contains  a  form,  same  as  on 
page  139,  and  makes  the  affidavit,  or  a  certified  copy,  prima 
facie  evidence  of  the  performance.  The  object  of  this  section 
is  to  provide  a  convenient  method  of  preserving  proof  of  the 


138  ANNUAL  LABOR. 

labor  performed  by  making  the  affidavit  prima  facie  evidence 
of  the  fact.— Cowman  v.  Curtis,  12  Mont.  301,  30  P.  266. 

Like  acts  exist  in  most  of  the  other  States,  the  time  for 
filing  the  certificate  being :  In  Arizona  within  three  months ; 
California  and  Washington  within  30  days;  Idaho  and  New 
Mexico  within  60  days  after  the  period  allowed  for  perform- 
ance. In  Montana  20  days,  Nevada  and  Wyoming  60  days, 
Utah  30  days  after  completion  of  work. 

The  affidavit  is  only  prima  facie  evidence  and  may  be  con- 
tradicted.—Dickens  Co.  v.  Crescent  Co.,  26  Ida.  153, 141  P.  566. 

For  proof  of  annual  labor  in  Alaska,  see  p.  636. 

Failure  to  File  Affidavit  of  Labor. 

The  neglect  to  file  proof  of  labor,  if  the  labor  has  in  fact 
been  done,  would  not  leave  the  lode  open  to  relocation,  and 
the  doing  of  the  labor  can  be  shown  by  oral  testimony. — 
McGinnis  v.  Egbert,  8  Colo.  41,  15  M.  R.  329,  5  P.  652 ;  Book 
v.  Justice  Co.,  58  F.  118,  17  M.  E.  617 ;  Murray  Hill  Co.  v. 
Havenor,  24  Utah  73,  21  M.  R.  668,  66  P.  762.  But  the  pre- 
caution to  file  should  by  no  means  be  neglected.  The  filing 
makes  out  the  proof  of  the  fact  of  the  labor  being  done,  which 
might  afterwards  be  a  difficult  matter  to  show. 

The  California  Act  of  1891  purported  to  make  the  filing 
obligatory.— Harm  v.  Kellogg,  117  Cal.  484,  49  P.  708,  and 
in  Idaho  the  failure  to  file  is  prima  facie  evidence  that  the 
work  has  not  been  done. 

The  great  objection  to  annual  labor,  with  the  professional 
mind,  is  that  it  throws  a  mining  title  upon  constant  parol 
proof,  takes  it  out  of  the  chain  of  title  as  found  recorded,  and 
makes  it  depend  upon  the  existence  of  facts  which  do  not 
appear  of  record.  This  evil  should  be  obviated  as  far  as 
possible  by  precautions,  such  as  are  above  suggested ;  but,  after 
all,  the  result  remains,  that  no  claim  can  be  considered 
secure  until  a  patent  is  obtained  and  the  title  taken  out  of  the 
class  of  conditional  estates. 


ANNUAL  LABOR.  139 

FORM  OF  AFFIDAVIT  OF  LABOR  PERFORMED. 
STATE  OF  COLORADO,  } 
Summit  County.       J 

Before  me,  the  subscriber,  personally  appeared,  Thomas  A.  "Brown, 
who  being  duly  sworn,  saith  that  at  least  one  hundred  dollars'  worth  of 
work  or  improvements  were  performed  or  made  upon  the  Chaos  Lode, 
situate  on  Silver  mountain,  in  Avalanche  Mining  District,  County  of 
Summit,  State  of  Colorado,  between  the  first  day  of  January,  A.  D.  1915, 
and  the  thirty-first  day  of  December,  A.  D.  1915.  Such  expenditure  was 
made  by  or  at  the  expense  of  Robert  W.  Foote,  owner  (or  one  of  the 
owners)  of  said  claim,  for  the  purpose  of  complying  with  the  law  and 
holding  said  claim. 

(Jurat.)  THOMAS  A.  BROWN. 

A  single  affidavit  may  be  filed  for  the  labor  on  several 
claims.— McGinnis  v.  Egbert,  8  Colo.  41, 15  M.  E.  329,  5  P.  652. 
And  it  may  be  filed  before  the  year  elapses. — Id.  But  not 
after  the  time  limited  by  the  Statute. — McKnigM  v.  El  Paso 
Co.,  16  N.  M.  721,  Ann.  Gas.  1912D,  1309,  120  P.  695. 

Certificate  in  Lieu  of  Annual  Labor. 

In  1893  and  1894  Congress  passed  Acts  suspending  for 
each  of  those  years  the  requirement  of  annual  labor,  provided 
the  claimant  recorded  a  notice  of  his  intention  to  hold  and 
work  the  claim.— 28  St.  L.  6,  114.  In  both  Acts  South  Dakota 
was  excluded. 

There  can  be  no  forfeiture  for  failure  of  co-tenant  to  con- 
tribute his  proportion  of  expenditure  for  1893,  when  he  has 
filed  the  certificate  allowed  by  the  Act,  even  where  the  work 
had  been  done  before  the  Act  was  passed.  There  is  no  vested 
interest  in  a  right  to  enforce  a  penalty. — Royston  v.  Miller,  76 
F.  50,  18  M.  E.  418. 

When  the  Ground  Is  in  Litigation  the  Court  May  Appoint 

a  receiver  to  see  that  the  work  is  performed  and  a  forfeiture 
prevented.— Nevada  Co.  v.  Home  Co.,  98  F.  673,  20  M.  E.  283. 
It  is  not  contempt  of  a  mining  injunction  to  perform  the 
amount  of  labor  necessary  to  save  the  claim  from  forfeiture. — 
Silver  Peak  Mines  v.  Hanchett,  20  M.  E.  19,  93  F.  76. 


140  ANNUAL  LABOR  ON  PLACERS. 

Duty  of  trustee  to  do  annual  labor.  If  he  refuses  bene- 
ficiary may  perform. — Anderson  v.  Robinson,  63  Or.  228, 
126  P.  988,  127  P.  546.  Where  the  lessor  enjoined  the  lessee 
from  working,  it  excused  him  from  his  covenant  to  do  the 
annual  labor.— Holla  v.  Rogers,  187  F.  778,  109  C.  C.  A.  626. 

A  party  made  a  new  location  over  an  older  claim  which  he 
afterwards  purchased.  Held:  that  the  work  done  on  the  new 
location  could  be  treated  as  annual  labor  for  the  protection  of 
the  older  title.— Johnson  v.  Young,  18  Colo.  630,  34  P.  173. 

Breach  of  Contract  to  Perform. 

In  Stamey  v.  Hemple  defendant  had  agreed  to  do  the  annual 
labor,  which  he  failed  to  do  and,  as  the  complaint  alleged,  the 
claims  were  relocated  on  the  first  of  January.  The  Court 
held  that  the  defendant  was  liable  in  any  event  for  the  $100 
on  each  claim  and  intimated  that  he  would  be  liable  for  the 
full  value  of  the  claims  unless  he  was  able*  to  show  that  the 
plaintiff  might  have  saved  his  title  by  reasonable  exertions. — 
173  F.  61,  97  \1  C.  A.  379. 


ANNUAL  LABOR  ON  PLACERS. 


Judicial  Rulings  As  to  Labor  on  Placers. 

The  question  of  annual  labor  on  placers  is  a  curious  instance 
of  the  growth  of  law  by  following  the  first  judicial  oversight 
as  a  precedent  until  the  wrong  interpretation  is  firmly  rooted 
as  the  true  one.  By  no  fair  construction  of  the  Act  of  1872 
could  it  be  applied  to  anything  except  lode  claims.  The  very 
amount  of  the  labor  was  fixed  by  the  number  of  feet  "in 
length  along  the  vein."  But  in  1876,  in  Cliapman  v.  Toy 
Long,  4  Sawy.  28,  1  M.  R.  497,  Fed.  Cas.  No.  2610,  placers 
were  referred  to  incidentally  as  subject  to  the  labor  law.  In 
Jackson  v.  Roby,  109  U.  S.  440,  27  L.  Ed.  990,  3  Sup.  Ct.  Rep. 
301,  without  argument,  the  same  dictum  was  expressed.  Later, 


ANNUAL  LABOK  ON   PLACEUS.  141 

in  Carney  v.  Arizona  Co.,  65  Cal.  40,  2  P.  734,  the  point  was 
definitely  made  as  to  whether  such  labor  was  required  on 
placers,  and  the  Supreme  Court  of  California,  basing  their 
opinion  on  the  force  of  the  general  terms  of  Sec.  2329 — a  sec- 
tion enacted  two  years  prior  to  the  annual  labor  section — 
sustain  the  affirmative  of  the  proposition.  In  Sweet  v.  Web- 
ber, 1  Colo.  443,  4  P.  752,  the  precedents  thus  established 
were  followed  without  reference  to  the  original  statute. — 
Morgan  v.  Tillotson,  73  Cal.  520,  15  P.  88. 

A  single  record  of  a  placer  claim,  whether  of  20  acres  by 
one  person  or  160  acres  by  eight  persons,  is  one  full  claim  and 
requires  $100  annual  expenditure  to  protect  it  and  $500  to 
patent  it.  In  other  words  a  20-acre  claim  requires  as  much 
annual  labor  and  patent  expenditure  as  a  160-acre  claim.  One 
hundred  dollars'  labor  on  each  20  acres  of  an  association  placer 
is  not  required. — Rooncy  v.  Barnett,  200  F.  700. 

Work  done  outside  the  claim  to  avail  as  annual  labor  must 
be  shown  to  be  of  benefit  to  the  placer — the  same  as  in  the 
case  of  lode  claims.— Anvil  Co.  v.  Code,  182  F.  205,  105 
C.  C.  A.  45. 

The  Forms  of  Affidavit,  Notice  and  Proof  of  Forfeiture  Given 

for  lode  claims  will  apply  with  obvious  alterations  to  placers. 

Void  State  Legislation. 

In  1879  the  Legislature  of  Colorado  passed  an  Act  fixing 
the  amount  of  annual  labor  on  placers,  altering  the  period 
during  which  it  was  to  be  performed,  and  providing  for  for- 
feiture of  the  delinquent  co-owner's  interest.  It  was  declared 
in  conflict  with  the  Congressional  Act  in  attempting  to  lessen 
the  annual  expenditure  in  Sweet  v.  Webber,  7  Colo.  443,  4 
P.  752.  It  was  obviously  so  in  its  attempt  to  interfere  with  the 
beginning  and  end  of  the  annual  period.  All  such  statutory 
provisions  are  superfluous  where  they  agree  with  the  Act  of 
Congress  and  nugatory  where  they  conflict  with  it. 


142  FORFEITURE  TO  CO-OWNER. 

Special  A.  C.  as  to  Group  Oil  Claims. 

That  where  oil  lands  are  located  under  the  provisions  of  title  thirty- 
two,  Chapter  six,  Revised  Statutes  of  the  United  States,  as  placer  raining 
claims,  the  annual  assessment  labor  upon  such  claims  may  be  done  upon 
any  one  of  a  group  of  claims  lying  contiguous  and  owned  by  the  same 
person  or  corporation,  not  exceeding  five  claims  in  all;  Provided,  That 
said  labor  will  tend  to  the  development  or  to  determine  the  oil-bearing 
character  of  such  contiguous  claims. — Feb.  12,  1903.  32  St.  L.  825. 
Comp.  L.  1911,  p.  611. 

This  section  is  construed  in  Smith  v.  Union  Oil  Co.,  166  Cal. 
217, 135  P.  967.  See  p.  689. 


FORFEITURE  TO  CO-OWNER. 


By  Failure  to  Do  Annual  Labor — Notice. 

R.  S.  Sec.  2324. —  *  *  *  Upon  the  failure  of  any  one  of  several 
co-owners  to  contribute  his  proportion  of  the  expenditures  required 
hereby,  the  co-owners  who  have  performed  the  labor  or  made  the  improve- 
ments may,  at  the  expiration  of  the  year,  give  such  delinquent  co-owner 
personal  notice  in  writing  or  notice  by  publication  in  the  newspaper  pub- 
lished nearest  the  claim,  for  at  least  once  a  week  for  ninety  days,  and  if 
at  the  expiration  of  ninety  days  after  such  notice  in  writing  or  by  pub- 
lication such  delinquent  should  fail  or  refuse  to  contribute  his  proportion 
of  the  expenditure  required  by  this  section,  his  interest  in  the  claim  shall 
become  the  property  of  his  co-owners  who  have  made  the  required 
expenditures. — Sec.  5,  A.  C.  May  10,  1878. 

Oregon  supplements  this  section  by  an  Act  in  minute  detail. 
—Laws  of  1903,  p.  326. 

The  provision  for  forfeiture  to  co-owners  is  not  unconstitu- 
tional and  equity  will  enforce  it. — Van  Sice  v.  Ibex  Co.,  173 
F.  895,  97  C.  C.  A.  587. 

Expenditures  in  Excess  of  the  Statutory  Amount. 

Although  one  co-owner  has  expended  more  than  enough  to 
hold  the  claim,  the  delinquent  co-owner,  to  save  forfeiture 
under  the  Act  of  Congress,  is  only  required  to  pay  or  tender 


FOEFE1TUKE  TO  CO-OWNER.  143 

his  proportion  of  the  amount  which  the  law  required  to  be 
expended  upon  the  claim. 

The  recovery  of  his  proportion  of  additional  expenditures 
depends  upon  other  grounds,  and  is  to  be  enforced  only  by 
judicial  proceedings,  involving  the  question  of  mining  part- 
nership accounts  or  the  expressed  or  implied  assent  of  the 
co-owner  to  the  expenditure  of  the  additional  amount. — 5 
L.  0.  4;  Neuman  v.  Dreifurst,  9  Colo.  228,  11  P.  98;  McCord 
v.  Oakland  Q.  Co.,  64  Cal.  134,  27  P.  863,  49  Am.  Rep.  686.  The 
distinction  is  clearly  expressed  in  Holbrooke  v.  Harrington 
(Cal.),  36  P.  365. 

The  delinquent  co-owner  is  not  bound  to  pay  his  proportion 
of  the  annual  labor  as  a  debt. — McDaniel  v.  Moore,  19  Ida. 
43,  112  P.  317. 

If  There  Are  Three  Owners  and  One  Performs  All  the  Labor, 

and  gives  notice  to  his  co-owners,  and  one  of  them  pays  his 
proportion  and  offers  to  pay  one-half  and  join  in  the  division 
of  the  forfeited  interest  of  the  third  party,  we  apprehend  the 
second  party  may  refuse  such  proposition.  The  forfeiture 
accrues  solely  to  him  who  has  performed  the  labor. — 31  L.  D. 
178. 

Estoppel. 

When  a  co-owner  is  delinquent,  but  the  party  who  has 
made  the  expenditure  afterwards  associates  with  him  in  de- 
veloping the  claim,  it  would  probably  be  considered  a  waiver 
of  the  forfeiture. 

Burden  of  Proof. 

The  presumption  in  law  is  always  against  forfeiture,  and 
the  party  who  asserts  it  must  be  prepared  to  make  his  proof 
in  such  case.— Turner  v.  Sawyer,  150  U.  S.  578,  17  M.  R.  683, 
37  L.  Ed.  1189, 14  Sup.  Ct.  Rep.  192. 


144  FORFEITURE  TO  CO-OWNER. 

Amount  and  Place  of  Expenditure. 

Where  a  forfeiture  notice  covered  two  claims  it  was  held 
void  for  not  stating  the  "amount  of  money  spent  upon  each 
claim  nor  the  facts  which  might  exclude  expenditure  upon  each 
claim."— Hay nes  v.  Briscoe,  29  Colo.  137,  67  P.  156,  21  M.  R. 
720.  The  clause  in  italics  we  apprehend  refers  to  the  possible 
case  of  group  work  where  the  full  amount  might  have  been 
expended  on  a  single  claim. 

Choice  Between  Personal  Service  and  Publication. 

If  the  demand  is  made  by  personal  service  of  the  forfeiture 
notice  the  delinquent  must  comply  within  ninety  days  from 
date  of  service.  If  publication  be  made  the  forfeiture  is  not 
complete  until  ninety  days  after  the  last  publication. 

If  publication  be  attempted  it  can  not  be  turned  into  per- 
sonal service  by  showing  that  copies  of  the  paper  were  sent 
to  and  received  by  the  party  in  default. — Haynes  v.  Briscoe, 
supra.  And  publication  of  forfeiture  notice  is  a  waiver  of 
prior  personal  demand. — Knickerbocker  v.  Holla,  177  F.  172, 
100  C.  C.  A.  634. 

Nearest  Newspaper. 

As  to  what  is  the  "newspaper  published  nearest  the  claim" 
the  construction  followed  by  STEELE,  J.,  in  Haynes  v.  Briscoe, 
seems  to  be  clearly  right;  to  wit:  that  it  means  nearest  in  a 
direct  line,  and  not  by  the  usually  traveled  route. 

Length  of  Publication. 

Publication  for  thirteen  weeks  was  held  sufficient  in  Elder 
v.  Horseshoe  Co.,  15  S.  D.  124,  102  Am.  St.  Rep.  681,  21  M.  R. 
510,  87  N.  W.  586;  affirmed,  194  U.  S.  248,  48  L.  Ed.  960, 
24  Sup.  Ct.  Rep.  643. 

Proceedings  to  Enforce  Forfeiture. 

In  the  first  instance  file  the  usual  affidavit  of  labor  per- 
formed, in  the  form  given  on  p.  139. 


FOEFEITUEE  TO  CO-OWNEE.  145 

FORFEITURE   NOTICE.     (A) 

GEORGETOWN,  COLO.,  January  3,  1916. 
To  Robert  H.  Tinker: 

You  are  hereby  notified  that  I  have  expended  during  the  year  1915 
one  hundred  dollars  in  labor  and  improvements  upon  the  Corinne  Lode 
Mining  Claim,  situate  on  Republican  Mountain  in  Griffith  Mining  District, 
County  of  Clear  Creek,  State  of  Colorado,  the  location  certificate  of  which 
is  found  of  record  in  book  SO,  page  222,  in  the  office  of  the  recorder  of 
said  county,  in  order  to  hold  said  claim  under  the  provisions  of  section 
2324  of  the  Eevised  Statutes  of  the  United  States,  and  the  amendment 
thereto  approved  January  22,  1880,  concerning  annual  labor  upon  mining 
claims,  being  the  amount  required  to  hold  said  lode  for  the  period  ending 
on  the  31st  day  of  December,  A.  D.  3915.  And  if,  within  ninety  days 
from  the  personal  service  of  this  notice,  or  within  ninety  days  after  the 
publication  thereof,  you  fail  or  refuse  to  contribute  your  proportion  of 
such  expenditure  as  a  co-owner,  which  amounts  to  fifty  dollars,  your 
interest  in  the  claim  will  become  the  property  of  the  subscriber,  your 
co-owner,  who  has  made  the  required  expenditure,  by  the  terms  of  said 
section.  JAMES  H.  PEESHINO. 

If  the  demand  contained  in  this  Forfeiture  Notice  is  not 
complied  with,  within  the  prescribed  period,  it  should  be 
recorded  after  making  proof  of  its  service  or  publication, 
which  can  be  most  readily  done  by  endorsement  upon  the 
Notice  "A"  as  follows: 

PROOF  OF  FORFEITURE.     (B) 

STATE  OF  COLORADO,  County  of  Clear  CreeTc:  ss. 

James  H.  Pershing,  being  duly  sworn,  saith  that  he  seryed  the  within 
forfeiture  notice  upon  "Robert  H.  Tinker,  the  delinquent  co-owner  therein 
named,  upon  the  17th  day  of  March,  A.  D.  1916,  at  said  county,v  by 
delivering  to  him  a  true  copy  of  the  same  and  explaining  the  contents 
thereof;  and  that  the  said  Robert  H.  Tinker  wholly  failed  to  comply  with 
the  demand  contained  in  said  notice  or  to  pay  or  tender  his  proportion 
of  said  expenditures  during  the  period  of  ninety  days  after  said  date  or 
at  any  time  since  hitherto.  JAMES  H.  PERSHING. 

Sworn  and  subscribed  before  me  this  first  day  of  July,  A.  D.  1916. 
[SEAL]  John  Toinay, 

Notary  Public. 

The  above  form  completes  the  proceeding  where  the  notice 
has  been  personally  served,  but  where  it  has  been  by  publica- 
tion, discard  the  form  "B"  and  use  the  following  "0"  and 
"D." 


146  FOEFEITURE  TO  CO-OWNER. 

PROOF   OP   PUBLICATION,     (c) 

STATE  OP  COLORADO,  County  of  Clear  Creek:  ss. 

(Copy  of  Notice  "A"  Attached.) 

Jesse  Randall,  being  duly  sworn,  saith,  that  he  is  the  publisher  of  the 
Georgetown  Courier,  a  weekly  newspaper  published  in  said  county,  and 
that  said  Georgetown  Courier  is  the  newspaper  published  nearest  to  said 
Corinne  Lode  Claim,  and  that  the  above  notice  was  published  in  said 
paper  fourteen  successive  weeks,  the  first  publication  appearing  in  the 
issue  of  January  7,  1916,  and  the  last  publication  in  the  issue  of  April  8, 
1916.  JESSE  RANDALL^ 

Sworn  and  subscribed  before  me  this  tenth  day  of  April,  A.  D.  1916. 
[SEAL]  John  Tomay, 

Notary  Public. 

Upon  the  publisher's  proof  (C),  the  party  who  has  done 
the  work  will  endorse  his  affidavit  of  non-payment  as  follows : 

AFFIDAVIT  OF  NON-PAYMENT.     (D) 

STATE  OF  COLORADO,  County  of  Clear  Creek:  ss. 

James  H.  Pershing,  being  duly  sworn,  saith,  that  "Robert  H.  Tinker, 
the  person  named  in  the  forfeiture  notice  attached  to  the  within  proof 
of  publication,  wholly  failed  to  comply  with  the  demand  contained  in 
said  notice  or  to  pay  or  tender  his  proportion  of  said  expenditures,  during 
the  period  of  said  notice  or  within  ninety  days  thereafter,  or  at  any  time. 

JAMES  H.  PERSHING. 

Sworn  and  subscribed  before  me  this  tenth  day  of  July,  A.  7).  1916. 
[SEAL]  John  Tomay, 

Notary  Public. 

These  forms  "A"  and  "B,"  in  cases  of  personal  service,  and 
"A,"  "C"  and  "D"  in  cases  of  advertisement,  complete  the 
forfeiture  and  place  its  proof  in  a  shape  where  it  is  recognized 
in  all  land  office  proceedings  as  the  equivalent  of  a  deed  from 
the  delinquent  party;  but  when  the  forfeiture  has  to  be  proved 
in  court  these  ex  parte  proceedings  would  not  be  recognized, 
except  the  publisher's  proof  (if  this  proceeding  can  be  con- 
sidered as  an  advertisement  required  by  law)  which  is  in 
Colorado  made  evidence  by  statute  R.  S.,  Sec.  2503.  Similar 
procedure  for  proof  of  statutory  publication  is  provided  by 
statutes  generally. 


FORFEITURE  TO  CO-OWNER.  147 

The  forfeiting  party  is  not  bound  by  law  to  make  record 
proof  of  the  forfeiture  except  as  it  may  be  required  by  the 
practice  of  the  Land  Office. — Riste  v.  Morton,  20  Mont.  139, 
49  P.  656. 

Minor  Heirs — Grouping  Notice. 

In  Elder  v.  Horseshoe  Co.,  15  S.  D.  124,  102  Am.  St.  Rep. 
681,  21  M.  R,  510,  87  N.  W.  586,  affirmed  in  194  U.  S.  248,  48 
L.  Ed.  960,  24  Sup.  Ct.  Rep.  643,  it  was  held  that  the  failure 
of  a  co-tenant  to  pay  for  his  share  of  the  work  was  a  breach 
of  the  condition  under  which  he  held  title ;  that  there  was  no 
saving  of  the  rights  of  minor  heirs;  that  a  notice  of  for- 
feiture for  several  consecutive  years  was  valid  and  .that  it  was 
optional  to  serve  personal  or  publish  printed  notice  of  for- 
feiture. But  notice  to  the  administrator  instead  of  to  the 
heir  will  not  avail  even  if  the  administrator  communicates 
such  notice  to  the  heir. — O'Hanlon  v.  Ruby  Gulch  Co.,  48 
Mont.  65, 135  P.  914. 

Parties— Defenses. 

A  party  not  a  co-tenant  at  time  of  notice  can  not  be  deprived 
of  an  after  acquired  title  by  such  notice.  Even  a  patent  pro- 
cured by  the  forfeiting  title  will  stand  to  the  use  of  such 
party.— Turner  v.  Sawyer,  150  U.  S.  578,  37  L.  Ed.  1189,  14 
Sup.  Ct.  Rep.  192,  17  M.  R.  683. 

The  attempted  forfeiture  is  a  void  proceeding  where  his 
share  of  worji  has  been  in  fact  done  by  the  co-tenant  alleged 
to  be  in  default.— Brundy  v.  Mayfield,  15  Mont.  201,  38  P. 
1067 ;  Thompson  v.  Pack,  219  F.  624.  Or  where  the  forfeiting 
co-tenant  did  not  in  fact  do  the  labor. — McKay  v.  Neussler, 
148  F.  86,  78  C.  C.  A.  154;  Delmee  v.  Long,  35  Mont.  139,  88 
P.  778.  Or  only  a  part  of  the  labor.— Pack  v.  Thompson,  223 
F.  635-645. 

A  forfeiture  notice  is  not  good  against  a  co-owner  not 
named  in  the  notice. — Ballard  v.  Golob,  34  Colo.  417,  83 
P.  376. 


148  FORFEITURE  TO  CO-OWNER. 

It  has  been  held  that  the  regularity  of  the  forfeiture  can 
not  be  questioned  by  third  parties  representing  a  title  hostile 
to  the  claim  where  the  alleged  forfeiture  to  co-owner  was 
asserted.— Becker  v.  Pugh,  17  Colo.  243,  29  P.  173 ;  Lancaster 
v.  Coale,  27  Colo.  App.  495,  150  P.  821.  And  an  irregular 
notice  may  be  cured  by  laches. — Cassidy  v.  Silver  King  Co., 
199  F.  100,  117  C.  C.  A.  640. 

If  a  co-owner  who  has  performed  the  labor  sell  his  interest 
before  completing  forfeiture  proceedings,  whether  his  as- 
signee can  forfeit  is  an  open  question,  but  the  language  of  the 
Turner  case,  that  the  right  is  limited  to  a  co-owner  who  has 
performed  the  labor,  would  seem  to  be  against  such  right. — 
See  31  L.  D.  178. 

But  in  Badger  Co.  v.  Stockton  Co.,  139  F.  838,  where  the 
performing  co-owners  had  conveyed  their  claim  to  a  corpora- 
tion, taking  its  stock  for  consideration,  the  forfeiture  per- 
fected by  the  corporation  was  upheld. 

In  Forderer  v.  Schmidt,  154  F.  475,  12  Ann.  Gas.  80,  84 
C.  C.  A.  426,  a  friend  of  the  party  who  was  being  advertised 
out  offered  to  pay  the  amount  due,  which  tender  was  ap- 
proved by  the  party  as  soon  as  he  learned  of  it.  Held,  that  the 
tender  defeated  the  forfeiture. 

A  stockholder  has  such  an  interest  in  the  property  that  he 
may  represent  it  and  do  the  annual  labor  and  he  can  not 
repudiate  such  labor  after  it  is  done  and  relocate  the  prop- 
erty.—Wattes  v.  Davies,  164  F.  397,  90  C.  C.  A.  385. 

A  party  received  a  deed  for  an  undivided  interest  in  a  claim 
as  his  pay  for  protecting  the  annual  labor  on  the  claim,  his 
grantor  retaining  an  interest  in  the  claim.  The  Court  held 
that  the  grantor,  not  his  grantee,  was  the  party  who  might 
declare  forfeiture  against  the  non-contributing  co-owners. — 
Knickerbocker  v.  Holla,  177  F.  172,  100  C.  C.  A.  634. 

The  same  case  held  that  tender  of  contribution  by  one 
co-tenant  for  another  was  good.  The  beneficial  owners  are 
the  proper  parties  to  give  notice  although  they  have  con- 
veyed their  interest  in  trust. — Van  Sice  v.  Ibex  Co.,  173  F. 
895,  97  C.  C.  A.  587. 


RELOCATION  OF  ABANDONED  CLAIMS.  149 

Certain  co-owners  on  the  Slap  Jack  lode  were  in  default  on 
their  share  of  the  annual  labor  for  1898.  Written  demand  for 
contribution  and  notice  of  intent  to  forfeit  were  served  in 
1899  after  they  had  conveyed  the  property,  but  the  deed  was 
not  of  record  and  the  parties  who  served  the  notice  had  no 
knowledge  of  the  deed.  This  demand  in  writing  was  immedi- 
ately delivered  to  the  grantee,  who  failed  to  pay,  and  the 
Court  held  the  forfeiture  good. — Evalina  Co.  v.  Yosemite  Co., 
15  Cal.  App.  714, 115  P.  946. 


RELOCATION  OF  ABANDONED  CLAIMS. 


Statutory  Regulation  of  Such  Relocation. 

R.  S.  Colo.  Sec.  4211. — The  relocation  of  abandoned  lode-claims  shall 
be  by  sinking  a  new  discovery  shaft  and  fixing  new  boundaries  in  the 
same  manner  as  if  it  were  the  location  of  a  new  claim;  or  the  relocator 
may  sink  the  original  discovery  shaft  ten  feet  deeper  than  it-was  at  the 
time  of  abandonment,  and  erect  new  or  adopt  the  old  boundaries,  renew- 
ing the  posts  if  removed  or  destroyed.  In  either  case  a  new  location 
stake  shall  be  erected.  In  any  case,  whether  the  whole  or  part  of  an 
abandoned  claim  is  taken,  the  location  certificate  may  state  that  the  whole 
or  any  part  of  the  new  location  is  located  as  abandoned  property. 
—Sec.  16,  Feb.  13,  1874. 

The  Old  Claim  Must  First  Be  in  Default. 

This  is  the  basis  of  the  right  to  relocate.— -GartJie  v.  Hart,  73 
Cal.  541,  15  M.  R.  492,  15  P.  93;  Locklwrt  v.  Rollins,  2  Ida. 
540,  21  P.  413,  16  M.  R.  16.  Two  locations  can  not  legally 
occupy  the 'same  space  at  the  same  time. — Porter  v.  Tonopah 
Co.,  133  F.  756. 

Admits  a  Prior  Hostile  Claim. 

Where  the  record  on  its  face  purports  to  be  a  relocation  of 
the  claim  of  a  stranger,  this  amounts  to  an  admission  that 
the  old  claim  had  once  a  legal  existence,  and  an  assertion  that 
it  has  become  open  to  forfeiture. — Wills  v.  Blain,  4  N.  M.  378, 


150  BELOCATION  OF  ABANDONED  CLAIMS. 

20  P.  798;  Shattuck  v.  Costello,  8  Ariz.  22,  68  P.  528,  22 
M.  R.  136 ;  Golden  v.  Murphy,  31  Nev.  395,  103  P.  394,  105  P. 
99.  The  burden  of  proof  is  upon  the  relocator. — Providence 
Co.  v.  Burke,  6  Ariz.  323,  19  M.  E.  625,  57  P.  641;  Zerres  v. 
Vanina,  134  F.  610,  150  F.  564,  80  C.  C.  A.  366. 

The  term  "relocation"  implies  that  there  was  a  former 
location,  and  the  use  of  the  word  estops  the  user  to  deny  a 
valid  prior  location. — Jackson  v.  Prior  Hill  M.  Co.,  19  S.  D. 
453,  104  N.  W.  207;  Slothower  v.  Hunter,  15  Wyo.  189,  88 
P.  36. 

But  the  rule  has  its  limitations  and  in  Zeiger  v.  Dowdy,  13 
Ariz.  331,  114  P.  565,  under  the  facts  of  the  case  the  party 
was  held  not  estopped  to  attack  the  validity  of  the  claim  he 
had  purported  to  relocate. 

Plaintiff  in  an  adverse  suit  must  show  that  his  claim  was 
located  on  the  unoccupied  public  domain.  And  when  he 
shows  that  there  was  a  prior  location  on  the  ground  and  does 
not  show  it  abandoned  he  fails  on  this  point.  The  statement 
of  a  witness  that  the  prior  claim  "was  abandoned"  is  a  mere 
statement  of  a  conclusion  of  law. — Lozar  v.  Neill,  37  Mont. 
287,  96  P.  343. 

Form  and  Manner  of  Relocation. 

In  the  relocation  of  abandoned  claims,  the  party  locates 
and  records  with  the  same  particularity  as  in  making  an 
original  location  or  record.  The  only  practical  distinctions 
are  that  he  may,  if  found  standing,  adopt  the  stakes  of  the 
old  claim.  And  his  discovery  shaft  may  be  by  sinking  the  old 
one  deeper.  He  has  the  same  rights  as  an  original  discoverer, 
although  not  in  strictness  a  discoverer  at  all. — Armstrong  v. 
Lower,  6  Cblo.  393,  15  M.  E.  631;  Pelican  Co.  v.  Snodgrass, 
9  Colo.  339,  12  P.  206. 

It  has  been  held  that  a  relocation  can  not  be  made  on  a 
blind  working — a  drift  which  has  been  run  underground 
from  the  bottom  of  the  shaft  on  an  adjoining  claim. — Little 
Gunnell  Co.  v.  Kimber,  1  M.  E.  536,  Fed.  Gas.  No.  8402.  See 
page  48. 


RELOCATION  OF  ABANDONED  CLAIMS.  151 

The  fact  of  improvements  already  on  the  ground  does  not 
lessen  the  labor  required  from  the  relocator;  he  must  do  the 
required  amount  of  sinking,  usually  ten  feet,  on  the  old,  or 
on  a  new  discovery  shaft;  must  erect  a  new  location  stake  or 
at  least  change  the  notice  on  the  old  stake  and  must  re-stake 
the  claim  unless  he  adopts  exactly  the  lines  and  boundaries 
of  the  old  location. 

The  stakes  of  the  old  claim  may  be  adopted  as  the  stakes 
of  the  new.—Conway  v.  Hart,  129  Cal.  480,  62  P.  44,  21 
M.  R.  20;  Brockbank  v.  Albion  Co.,  29  Utah  367,  81  P.  863; 
Riverside  Co.  v.  Hardwick,  16  N.  M.  479,  120  P.  325. 

But  in  Moffat  v.  Blue  River  Co.,  33  Colo.  142,  80  P.  139, 
and  Miller  v.  Chrisman,  140  Cal.  440,  98  Am.  St.  Rep.  63,  73 
P.  1083,  74  P.  444,  where  in  each  instance  an  attempt  had 
been  made  to  jump  a  valid  prior  claim  in  the  actual  posses- 
sion of  its  owner  by  adopting  its  stakes  and  filing  a  record  on 
the  boundaries  set  by  the  first  party,  the  second  attempted 
location  was  held  a  vain  proceeding. 

The  relocator  must  set  new  posts  or  at  all  events  must  see 
that  his  boundaries  are  established  on  the  ground.  Where  the 
old  stakes  are  taken  they  should  be  marked  with  the  new 
name. 

A  second  party  has  a  right  to  enter  upon  ground  although 
he  knows  of  an  attempted  prior  location  upon  it,  if  such 
prior  location  be  fatally  defective. — Brown  v.  Oregon  Co., 
110  F.  728,  21  M.  R.  485 ;  Deeney  v.  Mineral  Co.,  11  N..  M. 
279,  67  P.  724,  22  M.  R.  47.  But  if  he  enters  as  a  relocator 
he  can  not  assert  defects  in  the  original  notice. — Yosemite 
Co.  v.  Emerson,  208  U.  S.  25,  52  L.  Ed.  374,  28  Sup.  Ct. 
Rep.  196. 

No  Connection  With  the  Old  Title. 

The  relocator  has  no  rights  by  relation  to  the  date  and 
priority  of  the  title  which  he  has  destroyed  by  his  reloca- 
tion.— Cheesman  v.  Shreeve,  40  F.  789,  17  M.  R.  260.  There 
is  no  privity  of  title.— Burke  v.  8.  Pac.  R.  Co.,  234  U.  S.  670, 
58  L.  Ed.  1527,  34  Sup.  Ct.  Rep.  907. 


152  RELOCATION  OF  ABANDONED  CLAIMS. 

Reference  in  Location  Certificate  to  Old  Title. 

By  statute  in  several  States  in  the  relocation  of  forfeited 
or  abandoned  claims,  the  location  certificate  is  required  to 
state  if  the  whole  or  any  part  of  the  new  location  is  located 
as  abandoned  property.  In  Montana  and  Nevada  such  require- 
ment is  permissive,  but  if  relocation  is  made  by  sinking  the 
original  discovery  shaft  deeper,  the  location  certificate  in 
the  latter  State  must  give  the  depth  and  dimensions  of  the 
original  shaft  at  date  of  relocation. 

Cunningham  v.  Pirrung,  9  Ariz.  288,  80  P.  329,  rightly 
adjudged  that  the  Arizona  Statute  had  no  application  where 
the  prior  location  was  not  in  fact  a  valid  one.  But  it  went 
further  and  said  that  the  burden  of  proof  was  on  the  second 
location  to  show  that  the  overlapped  prior  location  was  not 
valid.  The  statute  was  further  considered  in  Matko  v.  Daley, 
10  Ariz.  175,  85  P.  721,  and  in  Kinney  v.  Lundy,  11  Ariz.  75, 
89  P.  496,  and  in  Clason  v.  Matko,  12  Ariz.  213,  100  P.  773, 
but  the  mischievous  law  was  not  only  repealed  in  1907  but 
in  1909  a  further  act  was  passed  declaring  that  as  to  all 
records  made  while  the  act  was  in  force  the  omission  to  refer 
to  abandoned  lodes  should  not  invalidate  such  records. 

The  act  requiring  such  recital  does  not  require  mention  of  a 
location  which  was  never 'completed. — Paragon  Co.  v.  Stevens 
Co.,  45  Wash.  59,  87  P.  1068. 

All  such  statutes  are  useless  and  produce  only  embarrass- 
merit.  A  prospector  finding  old  works  or  notices  may  be  in 
entire  ignorance  as  to  whether  they  represent  a  perfected  claim 
or  an  unperfected  prospect.  But  unwise  as  such  statutes  may 
be,  they  are  not  in  contravention  of  the  Mining  Acts  of  Con- 
gress. —Clason  v.  Matko,  223  U.  S.  646,  56  L.  Ed.  588,  32 
Sup.  Ct.  Rep.  392,  affirming  Matko  v.  Daley,  supra. 

The  case  of  Copper  Queen  Co.  v.  Stratton,  17  Ariz.  127, 
149  P.  389,  provides  an  escape  by  holding  that  a  certificate 
of  location  of  abandoned  ground  without  mention  of  that  fact, 
is  invalid  only  where  the  original  locators  or  parties  claim- 
ing under  them  are  asserting  their  interest. 


KELOCATION  OF  ABANDONED  CLAIMS.  153 

Where  the  language  and  context  of  such  statutes  will  pos- 
sibly permit,  they  ought  to  be  held  directory  merely,  not  man- 
datory, and  thus  no  loss  of  title  from  non-compliance  would 
follow. 

The  fact  that  there  was  a  cabin  on  the  ground  located,  and 
old  notices  and  stakes  does  not  show  that  the  ground  was 
not  public  domain,  there  being  no  proof  of  any  discovery 
in  connection  with  the  stakes  and  notices. — Cook  v.  Klonos, 
164  F.  529,  90  C.  C.  A.  403. 

Re-Entry  by  Original  Owner. 

After  the  annual  period  has  expired,  the  old  claimant  has 
still  the  first  right;  but  if  he  has  commenced  work  before 
another  party  enters,  he  must  complete  the  full  amount 
required  with  reasonable  diligence,  as  otherwise  the  claim 
would  remain  forfeit. — Honaker  v.  Martin,  11  Mont.  91,  27 
P.  397.  And  after  the  relocator  has  entered  he  hag  the  right 
to  maintain  his  possession  against  an  attempted  resumption 
by  the  old  owner.— Morgan  v.  Tillotson,  73  Cal.  520,  15  P. 
88 ;  McDonald  v.  McDonald,  16  Ariz.  103,  144  P.  750. 

In  Field  v.  Tanner,  32  Colo.  278,  75  P.  916,  a  party 
attempted  to  relocate  for  failure  of  owner  to  do  his  annual 
work.  After  his  purported  relocation  the  owner  re-entered 
and  did  the  work  and  recovered  because  of  defects  in  the 
relocation,  to-wit:  shortage  in  the  depth  of  the  discovery 
shaft. 

In  Thornton  v.  Kauftnan,  40  Mont.  282,  135  Am.  St.  Rep. 
618,  106  P.  361,  the  Little  Spring  Lode  had  become  open  to 
relocation  in  January,  1898,  and  the  plaintiffs  had  apparently 
completed  their  location  on  the  ground  before  the  Little 
Spring  owners  resumed  and  completed  work  in  December, 
1898.  But  plaintiffs'  record  was  defective  and  was  not  made 
good  by  a  valid  amended  certificate  until  several  years  later. 
The  court  held  that  the  resumption  was  in  time,  treating  the 
record  as  a  part  of  the  location  and  holding  that  a  resump- 
tion could  be  made  at  any  time  before  the  location  was  com- 
plete by  record. 


154  RELOCATION  OF  ABANDONED  CLAIMS. 

When  the  Original  Owner  Had  Begun1  Work  Before  the 

expiration  of  the  year,  and  so  being  not  yet  entirely  in  default 
was  at  work  on  December  31st — an  entry  by  a  relocator  on 
January  1st  (a  Sunday)  or  on  January  2  (a  legal  holiday) 
will  not  initiate  a  valid  claim. — McNeil  v.  Pace,  3  L.  D.  267 ; 
Fee  v.  Durham,  121  F.  468,  57  C.  C.  A.  584. 

After  midnight  of  December  31  the  claim  is  open  to  relo- 
cation.—McDonald  v.  McDonald,  16  Ariz.  103,  144  P.  750. 

Relocating  Instead  of  Resuming. 

In  Warnock  v.  DeWitt,  11  Utah  324,  40  P.  205,  the 
Supreme  Court  of  Utah  decide  in  terms  that  an  owner  may 
allow  his  claim  to  be  in  default  as  to  annual  labor  and  then 
renew  his  monuments,  file  a  new  record  and  hold  under  such 
second  location.  The  Court  cites  the  case  of  Hunt  v.  PatcMn, 
35  F.  816,  13  Sawy.  304,  as  upholding  such  relocation.  This 
Hunt  case  was  a  controversy  between  co-owners  where  the 
rights  of  strangers  or  of  a  hostile  title  were  not  involved  and 
does  not  justify  the  citation. 

The  law  requires  the  owner  to  do  a  certain  amount  of  work 
within  a  certain  period.  It  allows  him  the  indulgence  of 
retaining  his  old  title  if  he  re-enters  and  resumes  work 
either  during  such  period  or  during  the  next  year  before 
another  has  entered.  To  allow  him  from  year  to  year  to  renew 
his  monuments  and  file  new  records  would  result  in  wholly 
defeating  the  intent  of  the  law.  We  think  that  there  is  an 
implied  distinction  between  his  rights  and  the  rights  of  others 
in  such  a  case.  He  has  forfeited  the  right  to  locate  that 
ground  by  virtue  of  his  default  in  not  living  up  to  his 
assumed  obligation  to  follow  up  his  location  by  labor  in 
good  faith.  The  claim  is  open  to  relocation  by  all  citizens 
barring  the  one  whose  default  is  the  occasion  of  its  being  open 
and  his  only  rights  are  those  conferred  on  him  by  the  statute 
to-wit:  the  right  to  resume  and  perform.  Mr.  Lindley  fully 
coincides  with  these  views. — 2  Lind.  3d.  Ed.,  sec.  405. 


EELOCATION  OP  ABANDONED  CLAIMS.  155 

There  is  a  legislative  construction  to  the  same  effect  by  the 
insertion  at  the  proper  context  of  the  words  "open  to  loca- 
tion by  others"  in  the  Special  Act  concerning  annual  labor 
on  claims  in  Alaska.  See  p.  114. 

The  California  Act  of  1909,  Sec.  1426  S.,  forbids  a  reloca- 
tion by  an  owner  who  has  failed  to  do  his  annual  labor, 
within  three  years  after  the  date  of  his  original  location. 

0 
Relocation  After  Patent  Applied  For. 

In  South  End  M.  Co.  v.  Tinney,  22  Nev.  19,  35  P.  89,  a 
lode  had  applied  for  patent  and  completed  its  publication, 
but  considerable  delay  ensued  without  entry  and  the  annual 
labor  was  not  kept  up.  During  this  period  a  relocation  was 
made.  Afterwards  the  applicant  completed  his  entry,  but  it 
was  held  that  the  relocation  title  was  valid  and  that  the 
patentee  took  the  patent  in  trust  for  the  true  owner,  the 
relocator.  There  would  seem  to  be  no  doubt  that  the  annual 
labor  must  be  kept  up  until  actual  entry,  but  whether  other 
courts  will  go  to  the  extreme  of  this  holding  is  not  to  be 
assumed.  MURPHY,  C.  J.,  dissented,  as  did  BELKNAP,  J.,  in 
part.  See  page  118. 

In  Land  Office  proceedings  the  party  asserting  a  relocation 
must  prove  an  abandonment  of  the  original  claim. — 21  L.  D. 
219.  Or  the  original  application  may  be  canceled  for  laches. 
See  page  598. 

Overlapping  Senior  Claim. 

It  has  been  held  that  the  filing  of  amended  certificate  giving 
such  bounds  as  include  the  interference  of  a  prior  survey 
which  has  failed  to  have  its  annual  labor  performed  operates 
as  a  relocation  of  such  abandoned  overlapping  area  without 
specific  mention  of  such  being  the  intent  of  the  amendment. — 
Johnson  v.  Young,  18  Colo.  625,  34  P.  173.  See  page  132. 

Where  the  Court  had  decided  that  neither  claimant  to  the 
mine  had  title,  a  relocation  by  one  of  the  parties  after  such 
adjudication  was  held  valid. — Laiunan  v.  Hoofer,  37  Wash. 
382,  79  P.  953. 


156  RELOCATION  OF  ABANDONED  CLAIMS. 

Relocation  of  Abandoned  Claim  by  Co-Tenant. 

Where  the  several  owners  of  a  claim  have  allowed  the 
annual  period  to  expire  without  doing  the  annual  labor,  it 
has  been  asserted  that  any  one  of  them  may  enter  upon  the 
ground  and  relocate  the  claim  in  his  own  name,  leaving  out 
his  former  co-tenants.  The  statute  says  that  after  the  year 
has  expired  without  the  labor  being  done,  the  claim 

' '  Shall  be  open  to  relocation  in  the  same  manner  as  if  no  location  of  the 
same  had  ever  been  made. ' ' — R.  S.  Sec.  2324. 

But  these  words  are  immediately  followed  by  a  proviso 
which  seems  to  make  a  distinction  between  the  rights  of  the 
old  owners  and  the  rights  of  strangers,  and  there  is  an 
inherent  distinction  arising  from  their  joint  ownership.  It 
is  certain  that  if  all  the  owners  return  to  the  claim  their 
title  would  relate  back  to  the  original  discovery ;  and  it  is  also 
a  rule  of  law  that  a  tenant  in  common  can  not  rightfully  do 
any  act  which  is  subversive  of  his  co-tenant's  title,  and  quite 
as  certain  that  if  he  were  allowed  to  relocate  as  a  stranger 
he  must  yield  his  prior  claim  absolutely,  and  proceed  in  all 
particulars  as  an  entire  stranger. 

The  question  has  been  set  at  rest  by  repeated  decisions  that 
any  relocation  or  attempted  relocation  made  by  a  co-tenant 
is  for  the  benefit  of  the  common  title  and  one  co-tenant  can 
not  by  recording  in  his  own  name  oust  his  co-tenants. — 
McCarthy  v.  Speed,  11  S.  D.  362,  50  L.  R.  A.  185,  .19  M.  R, 
615,  77  N.  W.  590;  Yarwood  v.  Johnson,  29  Wash.  643,  70  P. 
123,  22  M.  R.  398 ;  Perelli  v.  Candiani,  42  Or.  625,  71  P.  537. 

In  Saunders  v.  Mackey,  5  Mont.  523,  6  P.  361,  a  co-owner 
had  agreed  to  see  the  work  done;  he  did  not  do  it,  and 
afterward  was  a  party  to  a  relocation.  The  court  held  that 
the  failure  operated  to  defeat  the  old  location,  and  that  the 
relocation  was  valid;  but  intimated  that  in  a  proper  action 
the  party  who  had  so  violated  his  agreement  would  be 
declared  to  hold  the  title  in  trust.  A  very  like  case  was 
Doherty  v.  Morris,  11  Colo.  12,  16  P.  911,  where  the  same 
ruling  was  -made  and  the  breach  of  trust  not  considered  on  the 


RELOCATION  OF  ABANDONED  CLAIMS.  157 

pleadings.  In  Royston  v.  Miller,  76  F.  50,  18  M.  R.  418,  it 
was  more  broadly  held  that  a  co-tenant  so  acting  could  take 
no  advantage  of  his  location.  But  it  requires  no  decision 
to  say  that  if  a  co-owner  promise  to  do  the  assessment  work 
and  fail  so  to  do,  or  if  he  do  it  and  deny  it  and  collude  with 
a  third  party  to  relocate  (as  was  the  fact  in  the  Morris  case) 
whatever  title  he  so  by  fraud  obtains  must  inure  to  the  good 
of  the  injured  party.  In  the  Morris  case,  the  actual  doing 
of  the  work  was  made  apparent  on  the  final  trial. — 17  Colo. 
105,  28  P.  85. 

The  case  of  Tarwood  v.  Johnson,  29  Wash.  643,  70  Pac.  123, 
22  M.  R.  398,  was  much  like  the  Morris  case  in  its  facts. 
Plaintiff  alleged  that  defendant,  a  co-tenant,  agreed  to  do  the 
work  and  did  it.  Defendant  had  relocated,  using  his  brother's 
name,  as  soon  as  the  year  expired.  The  Court  held  that  if 
the  work  had  been  done  the  relocation  was  void,  of  course, 
but  they  further  broadly  and  rightly  held  that  any  relocation 
made  by  a  co-tenant  was  for  the  benefit  of  the  common  title. 
—Clark  v.  Mitchell,  35  Nev.  464,  130  T.  764,  134  P.  449. 

The  case  of  Turner  v.  Sawyer,  150  IL  S.  578,  37  L.  Ed. 
1189,  14  Sup.  Ct.  Rep.  192,  17  M.  R.  683,  lays  down  the  true 
principle  applicable  to  the  point,  to-wit:  that  the  co-tenant 
can  not  acquire  and  hold  adversely  a  hostile  title  without 
allowing  opportunity  to  co-tenant  to  pay  his  proportion  of 
the  cost  and  take  the  benefit  of  the  same,  and  that  perfecting 
patent  was  the  purchase  of  such  a  title. — Suessenbach  v.  Bank, 
5  Dak.  477,  41  N.  W.  662 ;  Mills  v.  Hart,  24  Colo.  505,  65  Am. 
St.  Rep.  241,  52  P.  680;  Stevens  v.  Grand  Cent.  Co.,  133  F. 
28,  67  C.  C.  A.  284;  Delmoe  v.  Long,  35  Mont.  139,  88  P.  778. 

Abandonment  of  Undivided  Interest. 

Where  there  are  two  co-owners  of  a  possessory  claim  and 
one  of  them  fails  to  perform  his  proportion  of  the  annual 
work  the  one  who  does  the  work  may,  of  course,  at  the  end 
of  the  year  acquire  the  interest  thus  practically  abandoned. 
But  an  actual  abandonment  may  take  place  irrespective  of 


158  RELOCATION  OF  ABANDONED  CLAIMS. 

the  annual  labor.  Suppose  that  one  of  the  owners  deliber- 
ately informs  his  co-tenant  that  he  quits  the  ground  with 
intent  never  to  return  or  protect  his  interest.  Undoubtedly 
at  that  moment  the  one  who  remains  in  possession  may  file  a 
relocation  certificate,  in  his  own  name,  reciting  the  fact  of 
abandonment  and  become  the  owner  of  record  of  the  whole 
estate.  But  if  he  neglects  so  to  do  what  is  the  status  of 
the  abandoned  half  interest?  Certainly  a  stranger,  perhaps 
unfriendly  to  the  half  owner  in  possession,  could  not  relocate 
the  undivided  interest  and  force  himself  into  the  title  as  a 
co-partner.  We  believe  that  in  such  case  the  one  who  remains 
in  possession  becomes  the  owner  of  the  abandoned  half.  See 
O'Hanlon  v.  Ruby  Gulch  Co.,  48  Mont.  65,  135  P.  913. 

A  co-owner  attempting  to  relocate  in  his  own  name  so  as  to 
oust  his  associates  from  the  title  does  not  abandon  his  claim  to 
the  ground  nor  forfeit  by  estoppel  his  undivided  interest  in 
the  original  claim. — Hulst  v.  Doerstler,  11  S.  D.  14,  75 
N.  W.  270. 

Other  Instances  of  Fiduciary  Relation. 

The  owners  mortgaged  their  claim,  abstained  from  doing  the 
annual  labor,  and  after  the  year  elapsed,  relocated.  Held, 
that  they  could  not  so  defeat  the  mortgage. — Alexander  v. 
Sherman,  2  Ariz.  326,  16  P.  45,  15  M.  R.  638. 

The  grantor  by  quit-claim  deed  is  not  estopped  to  relocate 
when  his  vendee  fails  subsequently  to  keep  up  his  annual 
labor.— Blake  v.  Thome,  2  Ariz.  347, 16  P.  270.  For  attempted 
relocation  by  vendor  after  sale  see  Minah  Co.  v.  Briscoe,  89 
F.  891,  32  C.  C.  A.  390. 

In  McDermott  M.  Co.  v.  McDermott,  27  Mont.  143,  69  P. 
715,  22  M.  R.  338,  McDermott  had  sold  the  lode  to  a  com- 
pany in  which  he  became  a  director.  Afterwards  the  com- 
pany failed  to  do  its  work  and  the  claim  was  relocated  by  a 
third  party,  who  conveyed  it  back  to  McDermott.  There  was 
no  collusion  whatever.  The  company  had  quit  because  it 
could  find  no  pay.  The  Court  held  that  upon  abandonment  of 


RELOCATION  OF  ABANDONED  CLAIMS.  159 

the  claim  by  failure  to  do  the  labor  the  ground  reverted  to 
the  public  domain  and  the  relocation  was  an  independent  new 
title  having  no  connection  with  the  old  one. 

But  an  agent  or  other  party  in  a  fiduciary  capacity  can  not 
relocate  for  his  own  benefit. — Lockhart  v.  Rollins,  2  Ida.  540 
(503),  21  P.  413,  16  M.  R.  16;  Co-operative  Co.  v.  Law, 
65  Or.  250,  132  P.  521.  Nor  betray  the  property  to  a  stranger. 
— Utah  Co.  v.  Dickert  Co.,  6  Utah  183,  21  P.  1002.  Nor  can  a 
hired  prospector  say  that  what  he  has  turned  over  to  his  out- 
fitter is  his  own  by  a  prior  title. — Fuller  v.  Harris,  29  F.  814. 

Lessees  can  not  take  their  lessor's  property  by  going 
through  the  form  of  a  relocation. — Lowry  v.  Silver  City  Co., 
179  U.  S.  196,  45  L.  Ed.  151,  21  Sup.  Ct.  Rep.  104,  21  M.  R. 
113 ;  Brash  v.  White,  3  Ariz.  212,  73  P.  445. 

Where  all  the  others  have  conveyed  to  one  co-tenant  for  the 
purpose  of  patenting,  any  relocation  made  by  him  counts  for 
the  benefit  of  his  associates,  including  new  ground  taken  in 
by  his  relocation.— Hallack  v.  Traber,  23  Colo.  14,  46  P.  110, 
18  M.  R.  360. 

Defendant  agreed  to  relocate  for  plaintiff  and  himself.  He 
relocated  for  self  and  two  strangers.  Decree  for  plaintiff. — 
Clark  v.  Mitchell,  35  Nev.  448,  130  P.  760,  134  P.  448. 

A  Location  Made  by  an  ex-Employee  Is  Not  Void  from  the 

fact  that  his  knowledge  that  the  lode  had  been  followed  into 
vacant  ground  had  been  acquired  while  working  for  the  own- 
ers of  the  adjoining  patent. — Thallman  v.  TJwmas,  111  F.  277, 
49  C.  C.  A.  317,  21  M.  R.  573. 


160  EELOCATION  BY  OWNER. 

RELOCATION  BY  OWNER. 


In  What  Cases  Owner  May  Relocate. 

R.  S.  Colo.  See.  4210. — If  at  any  time  the  locator  of  any  mining  claim 
heretofore  or  hereafter  located,  or  his  assigns,  shall  apprehend  that  his 
original  certificate  was  defective,  erroneous,  or  that  the  requirements  of 
the  law  had  not  been  complied  with  before  filing,  or  shall  be  desirous  of 
changing  his  surface  boundaries,  or  of  taking  in  any  part  of  an  over- 
lapping claim  which  has  been  abandoned,  or  in  case  the  original  certificate 
was  made  prior  to  the  passage  of  this  law,  and  he  shall  be  desirous  of 
securing  the  benefits  of  this  act,  such  locator,  or  his  assigns,  may  file  an 
additional  certificate,  subject  to  the  provisions  of  this  act;  Provided, 
That  such  re-location  does  not  interfere  with  the  existing  rights  of  others 
at  the  time  of  such  re-location,  and  no  such  re-location  or  other  record 
thereof  shall  preclude  the  claimant  or  claimants  from  proving  any  such 
title  or  titles  as  he  or  they  may  have  held  under  previous  location. 
—Sec.  13,  Feb.  13,  1874. 

This  section  provides  an  escape  from  the  consequences  of 
loose  and  careless  records;  it  also  gives  narrow  claims  the 
opportunity  to  take  the  full  width  allowed  by  the  later  law; 
and  further,  in  case  a  lode  is  found  to  be  not  contained  in  the 
original  boundaries,  it  allows  the  error  to  be  corrected.  All 
former  rights  are  secured  with  the  new  privileges,  and  greater 
certainty  obtained  under  the  relocation. 

In  a  relocation  under  this  section  the  name  of  the  lode 
should  not  ordinarily  be  changed,  and  the  certificate  should 
show  that  it  is  a  relocation,  and  of  what  lode. 

AMENDED  OR  RELOCATION   CERTIFICATE. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  I,  Andrew  J.  Hughes,  of  the 
City  and  County  of  Denver,  State  of  Colorado,  claim  by  right  of  re-loca- 
tion, and  this  amended  certificate  of  location,  •fifteen  himdred  feet,  linear 
and  horizontal  measurement,  on  the  Kentucky  Lode,  along  the  vein 
thereof,  with  all  its  dips,  variations  and  angles,  together  with  one  hundred 
and  fifty  feet  in  width  on  each  side  of  the  middle  of  said  vein  at  the 
surface;  and  all  veins,  lodes,  ledges  and  surface  ground  within  the  lines 
of  said  claim;  750  feet  on  said  lode  running  north  10  degrees  east  from 
the  center  of  the  discovery  shaft,  and  750  feet  running  south  10  degrees 
west  from  said  center  of  discovery  shaft;  said  discovery  shaft  be;ng 
situate  upon  said  lode,  within  the  lines  of  said  claim,  iu  Silver  Cliff 


EELOCATION  BY  OWNER.  161 

Mining  District,  County  of  Custer,  State  of  Colorado.  Said  claim  la 
hou:>uc'l  and  described  as  follows:  Beginning  at  corner  No.  1  (etc., 
(1. •.•<•;•/', e  as  in  original  location  or  according  to  the  new  lines,  if  changed, 
and  conclude  as  follows) : 

Being  the  same  lode  originally  located  on  the  first  day  of  May,  A.  D. 
1894,  and  recorded  on  the  first  day  of  June,  A.  D.  1894,  in  book  7,  page  11, 
in  the  office  of  the  recorder  of  said  county.  This  further  certificate  of 
location  is  made  without  waiver  of  any  previous  rights,  but  to  correct  any 
error  in  prior  location  or  record,  to  secure  all  abandoned  overlapping 
claims,  and  to  secure  all  the  benefits  of  section  4210  of  the  Revised 
Statutes  of  Colorado.  Date  of  relocation,  January  7,  1908.  Date  of 
amended  certificate,  January  8,  1908.  ANDREW  J.  HUGHES. 

Nearly  all  the  mining  States  have  adopted  statutes  similar 
to  the  Colorado  Act  providing  for  the  relocation  of  aban- 
doned claims,  for  relocation  by  the  owner,  or  the  filing  of 
amended  certificate  of  location. 

But  they  are  only  declaratory  of  the  right  which  any  claim- 
ant has  without  the  aid  of  any  such  statute  to  amend  his  own 
publication  of  claim. — Thompson  v.  Spray,  72  Cal.  528,  14 
P.  182. 

Same  Particularity  As  in  Original  Location. 

The  discovery  shaft,  side  and  corner  posts  should  be  found 
on  the  ground  before  any  second  record  is  made,  and  if  the 
amendment  changes  the  boundaries  or  is  made  on  account 
of  any  previous  mistake  or  irregularity  in  any  act  of  loca- 
tion the  same  should  be  rectified  upon  the  ground  before 
recording.  The  description  in  the  new  certificate  will,  of 
course,  correspond  to  the  new  boundaries. 

A  new  location  stake  should  also  be  erected  at  the  discovery, 
if  the  length  or  width  called  for  on  the  original  stake  is 
altered,  and  especially  if  the  name  of  the  claim  is  changed. 
In  other  instances  the  old  stake  should  be  considered  as 
answering  all  purposes  of  notice  the  same  as  the  old  dis- 
covery shaft  which  does  not  need  to  be  sunk  to  any  greater 
depth  if  it  has  already  the  legal  depth. — Tonopah  Co.  v. 
Tonopah  Co.,  125  F.  390;  Becker  v.  Pugh,  17  Colo.  243,  246, 
29  P.  173.  In  fact,  no  change,  whatever,  upon  the  ground 


162  RELOCATION  BY  OWNER. 

.  is  necessary  if  the  original  location  was  perfectly  regular,  an  1 
the  only  idea  in  relocating  or  in  filing  the  amended  certifi- 
cate is  to  formally  appropriate  abandoned  interferences  or  to 
correct  mistakes  in  the  record. 

When  admitted  in  evidence  both  the  original  and  relocation 
certificates  are  to  be  construed  together. — Duncan  v.  Fulton, 
15  Colo.  App.  140,  61  P.  244,  20  M.  E.  522. 

The  Intent  of  the  Act  Is : 

First,  to  provide  a  recognized  mode  of  relieving  from  the 
consequences  of  clerical  and  other  mistakes;  second,  to  give 
'  to  old  locations  the  benefit  of  the  additional  width  allowed 
under  the  A.  C.  of  1872,  and  third,  to  allow  change  of  bounds, 
where  the  old  survey  was  found  to  vary  from  the  strike  of 
the  lode.— Seymour  v.  Fisher,  16  Colo.  189,  27  P.  240. 

An  additional  or  amended  location  certificate  may  be  filed 
on  old  3,000-foot  claims  for  mere  purpose  of  more  specific 
description,  but  such  claim  can  not  increase  its  width  and  at 
the  same  time  retain  its  old  length. 

A  relocation  certificate  is  good  for  all  purposes,  although 
it  does  not  state  that  it  is  filed  for  the  specific  purpose  mate- 
rial to  the  suit.  It  will  take  in  abandoned  overlap  although 
intention  so  to  do  is  not  expressed  on  its  face. — Carlin  v. 
Freeman,  19  Colo.  App.  334,  75  P.  26 ;  Tonopah  Co.  v.  Tono- 
pah  Co.,  125  F.  390. 

New  Discovery  Shaft. 

Where  a  discovery  is  made  within  the  lines  of  an  older 
claim,  or  the  locator  suffers  his  discovery  to  be  patented  by 
a  hostile  location,  he  may  make  a  valid  relocation  of  that 
part  of  the  claim  which  remains  to  him  upon  a  new  discovery 
made  on  clear  ground. — Erwin  v.  Perego,  93  F.  609,  35 
C.  C.  A.  482;  Silver  City  Co.  v.  Lowry,  19  Utah  334,  57  P.  11, 
20  M.  R.  55.  Affirmed  without  discussion  of  this  point  in 
Lowry  v.  S.  C.  Co.,  179  U.  S.  196,  45  L.  Ed.  151,  21  Sup.  Ct. 
Rep.  104,  21  M.  R.  113. 


EELOCATION  BY  OWNER.  163 

In  Treasury  Co.  v.  Boss,  32  Colo.  27,  105  Am.  St.  Rep.  60, 
74  P.  888,  where  a  new  discovery  shaft  had  been  sunk  to  get 
clear  of  patented  ground  on  which  the  original  discovery 
had  been  made,  the  claim  was  held  valid,  although  no  amended 
location  certificate  had  been  filed  and  no  notice  posted  at  the 
new  discovery.  As  to  the  latter  point  the  case  was  followed 
in  McMillen  v.  Ferrum  Co.,  32  Colo.  38,  105  Am.  St.  Rep.  64, 
74  P.  461. 

But  the  ruling  that  such  shifting  of  discovery  shaft  without 
a  second  record  is  good,  is  a  dangerous  precedent  to  rely  on. 

Where  a  party  shifts  his  discovery  shaft  and  relocates  upon 
such  new  discovery  shaft  it  is  no  abandonment  of  his  rights 
under  the  first  location. — King  Solomon  Co.  v.  Mary  Verna 
Co.,  22  Colo.  App.  528,  127  P.  130. 

To  Reform  End  Lines. 

A  relocation  may  be  made  so  as  to  make  the  end  lines 
parallel  and  place  the  lode  in  position  to  claim  extralateral 
rights.— Tyler  Co.  v.  Last  Chance  Co.,  71  F.  848, 18  M.  R.  303. 

Changing  Boundaries. 

A  claim  may  be  swung  at  right  angles  if  it  takes  up  no 
ground  to  which  rights  have  intervened. — Duncan  v.  Fulton, 
15  Colo.  App.  140,  61  P.  244,  20  M.  R.  522. 

Distinction  Between  Relocation  and  Amended  Certificate. 

In  strictness  there  is  a  relocation  only  when  some  change 
is  made  upon  the  ground,  as  by  changing  length,  width  or 
boundaries ;  perhaps  also  when  overlapping  abandoned  ground 
is  taken.  The  certificate  filed  to  show  such  change  is  a  relo- 
cation certificate.  But  if  the  error  is  in  the  papers  only,  as  by 
a  misleading  or  too  vague  description, 'there  is  no  relocation, 
but  only  the  filing  of  an  amended  location  certificate.  But 
the  terms  are  not  always  used  with  exactness  even  by  the  legal 
profession,  all  such  papers  as  well  as  acts  being  called  reloca- 


164  RELOCATION  BY  OWNER. 

tions  or  relocation  certificates,  and  a  misuse  of  the  terms 
is  not  generally  material. — Cheesman  v.  Shreeve,  40  F.  789, 
17  M.  R.  260. 

An  amended  location  certificate  may  be  filed  after  suit  com- 
menced.—Strepey  v.  Stark,  7  Colo.  614,  5  P.  Ill,  17  M.  R.  28. 
And  in  Butte  Co.  v.  Barker,  35  Mont.  327,  89  P.  304,  90  P. 
177,  it  was  admitted  in  evidence  though  not  filed  till  after  the 
trial  had  begun.  A  relocation  by  new  parties  may  be  made  to 
protect  the  original  locators.— U.  8.  v.  McCutchev,  217  F.  650. 

Relation  Back  and  Intervening  Claim. 

It  relates  back,  where  adverse  rights  have  not  intervened,  to 
the  date  of  the  original  location. — McGinnis  v.  Egbert,  8 
Colo.  41,  15  M.  R.  329,  5  P.  652;  Strepey  v.  Stark,  supra; 
Las  Vegas  Co.  v.  Summerfield,  35  Nev.  229,  129  P.  303. 

In  the  case  of  McEvoy  v.  Hyman,  25  F.  596,  15  M.  Pt.  397, 
and  in  Craig  v.  Thompson,  10  Colo.  517,  16  P.  24,  tli3 
amended  record  was  allowed  in  evidence  and  to  affect  and 
cut  out  intervening  claimants.  In  the  latter  case  the  interven- 
ing claimant  was  treated  as  a  trespasser  who  could  not  initi- 
ate rights;  in  the  former  the  original  certificate  was  treated 
as  a  defective  but  not  as  a  void  instrument. 

The  same  ruling  was  followed  in  Cheesman  v,  Shreeve,  40 
F.  787,  17  M.  R.  260,  stating  in  terms  that  an  amended  record 
related  back  to  the  date  of  the  original  record. 

In  the  Colorado  Statute  above  printed  there  is  an  express 
saving  of  intervening  rights.  But  such  exception  is  superflu- 
ous because  vested  rights  save  themselves.  There  is  no  doubt 
that  an  amended  record,  the  land  office  entry,  the  patent, 
every  successive  incident  toward  perfecting  title,  relates  back 
to  the  first  step  taken  toward  obtaining  such  title.  But  not- 
withstanding what  might  be  gathered  from  the  wording  of 
the  decisions  to  such  effect  taken  alone,  they  are  to  be  read  in 
connection  with  the  fact  that  the  doctrine  of  relation  can  not 
be  invoked  to  work  injustice  to  third  parties. — Gibson  v.  Chou- 
teau,  13  Wall.  101,  20  L.  Ed.  534.  And  if  a  location  or  location 


RELOCATION  BY  OWNEB.  165 

certificate  was  so  defective  as  to  be  void,  or  so  irregular  that  it 
allowed  strangers  to  become  legal  locators  of  the  same  ground, 
in  such  cases  an  amended  certificate  or  a  relocation  will  not 
relate  back  so  as  to  cut  out  such  intervening  locators. — Hall  v. 
Arnott,  80  Cal.  348,  22  P.  200 ;  Jordan  v.  Schuerman,  6  Ariz. 
79,  53  P.  579 ;  Deeney  v.  Mineral  Co.,  11  N.  M.  279,  67  P.  724, 
22  M.  R.  47;  Morrison  v.  Regan,  8  Ida.  291,  67  P.  956,  22 
M.  R.  69,  Brown  v.  Oregon  Co.,  110  F.  728,  21  M.  R.  485. 

New  rights  can  not  be  acquired  by  relocation  inconsistent 
with  the  intervening  rights  of  others. — Bunker  Hill  Co.  v.  Em- 
pire S.  Co.,  134  F.  268 ;  Butte  Co.  v.  Barker,  35  Mont.  327,  89 
P.  302,  90  P.  177;  Ware  v.  White,  81  Ark.  220,  108  S.  W.  832; 
Bakersfield  Co.  in  re,  39  L.  D.  460;  Giberson  v.  Tuolumne  Co., 
41  Mont.  396,  109  P.  974.  Nevertheless  it  was  in  effect  so 
held  in  Copper  Queen  Co.  v.  Stratton,  17  Ariz.  127, 149  P.  389. 

Where  Original  Record  Was  Voidable  Only. 

In  Moyle  v.  Bullene,  7  Colo.  App.  308,  44  P.  69,  the  very 
tenable  distinction  is  made  that  where  the  original  location 
certificate  was  so  "defective  as  to  absolutely  fail  to  comply 
with  the  statutory  requirements"  it  was  void  and  the  amended 
record  would  not  relate  back;  but  if  the  original  paper  was 
only  lacking  in  technical  detail  the  two  should  be  construed 
as  of  the  date  of  the  first,  and  both  construed  together  accord- 
ing to  the  doctrine  of  relation.  But  in  Frisholm  v.  Fitzgerald, 
25  Colo.  290,  53  P.  1109,  where  a  record  contained  no  reference 
at  all  to  a  natural  object  or  permanent  monument,  and  was  not 
only  constructively  void  for  non-compliance  with  the  Congres- 
sional Act,  but  was  declared  void  in  terms  by  the  Colorado 
Statute,  the  relocation  was  held  to  relate  back  to  the  original 
record  and  to  cut  out  an  intervening  title. 

The  opinion  in  the  case  is  peculiar  in  this,  that  it  is  the  per- 
sonal view  of  one  judge,  and  both  of  his  associates  refused  to 
concur.  It  is  not  the  opinion  of  a  Court,  and  therefore  has 
no  obligation  as  a  precedent  binding  the  nisi  prius  courts  of 
that  State.  Nothing  in  the  case  or  the  reasoning  on  which  it 


166  KELOCATION  BY  OWNER. 

is  based  shakes  our  conclusions  as  stated  in  the  preceding 
paragraph,  and  we  consider  untenable  the  proposition  that 
any  amendment  can  cure  a  void  record  as  against  an  inter- 
vening location. 

An  amended  notice  relates  back  to  the  original  notwith- 
standing intervening  locations  if  made  to  cure  obvious  defects 
in  the  original  notice  without  including  any  new  ground. — 
Gobert  v.  Butterfield,  23  Cal.  App.  1,  136  P.  516. 

Will  Not  Cure  Want  of  Discovery. 

In  most  of  the  cases  above  cited  the  point  was  one  of  objec- 
tion to  the  form  or  contents  of  the  original  location  certifi- 
cate— that  is,  to  the  papers  in  the  case — not  the  merits  of  the 
discovery  or  the  location  proper,  but  in  Beats  v.  Cone,  27 
Colo.  473,  83  Am.  St.  Rep.  92,  62  P.  949,  20  M.  R.  591,  there 
was  no  discovery  when  the  original  record  was  made.  The 
second  claimant  had  a  valid  discovery  before  the  first  had 
any  discovery,  and  the  Court  held  that  the  intervening  claim- 
ant took  the  ground  and  that  the  subsequent  discovery  on  the 
prior  claim  could  have  no  relation  back. 

An  amended  location  made  by  a  party  who  has  parted  with 
his  title  will  not  be  recognized. — Gray  Copper  Lode,  18  L.  D. 
536. 

The  Official  Survey  Corrects  the  Errors  of  the   Original 

location  and  its  stakes  and  corners  need  not  be  identified  with 
the  locator's  survey. — Howeth  v.  Sullenger,  113  Cal.  547,  45 
P.  841. 

Changing  Names  of  Locators  on  Notices — Transfers  Before 
Record. 

After  a  record  is  made  based  on  a  valid  location,  the  pos- 
sessory title  becomes  perfect,  subject  to  the  conditions  of  a 
possessory  title.— Gurillim  v.  Donnellan,  115  U.  S.  45,  29  L.  Ed. 
348,  5  Sup.  Ct.  Rep.  1110, 15  M.  R.  482.  But  before  record  it  is 


EELOCATION  BY  OWNER.  167 

not  unusual  for  prospectors  to  settle  their  rights  among  them- 
selves by  the  primitive  but  practical  method  of  adding  or  eras- 
ing names  from  the  discovery  notice.  Names  can  not  be  so 
erased  without  the  assent  of  the  parties  to  the  destruction  of 
the  right  vested  by  putting  them  there  in  the  first  instance. — 
Thompson  v.  Spray,  72  Cal.  528,  14  P.  182.  But  this  is  matter 
of  complaint  only  by  the  parties  injured,  and  strangers  to  the 
title  can  not  take  advantage  of  such  things. — Thompson  v. 
Spray,  supra;  Omar  v.  Soper,  11  Colo.  380,  7  Am.  St.  Rep. 
246,  15  M.  R.  496,  18  P.  443. 

In  Doe  v.  Waterloo  Co.,  70  F.  455,  17  C.  C.  A.  190, 18  M.  R. 
265,  it  was  held  that  a  verbal  transfer  of  an  interest  in  a  title 
not  yet  recorded  was  valid  and  that  the  new  associate  taken 
in  by  the  prospector  could  complete  the  location  for  their 
joint  benefit. 

Where  new  parties  become  transferees  of  an  uncompleted 
or  an  irregularly  completed  location  they  have  the  right  to 
perfect  the  record  in  their  own  names. — Miller  v.  Chrisman, 
140  Cal.  440,  98  Am.  St.  Rep.  63,  73  P.  1083,  74  P.  444; 
Tonopah  Co.  v.  Tonopah  Co.,  125  F.  389. 

Change  of  Name  of  Lode. 

It  is  not  infrequent  by  filing  amended  location  certificate 
and  posting  amended  notice  on  the  claim,  to  change  the 
name  of  the  lode.— Butte  Co.  v.  Barker,  35  Mont.  327,  89  P. 
302,  90  P.  177.  Where  names  such  as  decency  forbids  have 
been  placed  on  record  the  land  office  has  declined  to  patent 
the  lode  by  name.  In  such  instances,  or  even  where  the  name 
is  objectionable  only  for  sentimental  reasons,  where  all  parties 
interested  consent,  a  change  of  name  is  certainly  legal. — Sey- 
mour v.  Fisher,  16  Colo.  188,  197,  27  P.  240.  But  when  done, 
as  it  has  been,  in  instances,  preparatory  to  application  for 
patent  with  intent  to  mislead  and  forestall  an  anticipated 
adverse  claim,  or  preparatory  to  intended  forfeiture  publica- 
tion, there  could  be  no  stronger  circumstance  from  which  to 
draw  the  inference  of  fraud. 


168  UNITED  STATES  PATENT. 

Defendants  held  valid  locations  on  certain  lode  claims  for 
several  years  before  1907  and  did  their  work  every  year 
except  1907.  On  January  1,  1908,  they  posted  location  notices 
stating  that  the  same  were  on  abandoned  ground  and  recorded 
such  notices,  changing  the  names  of  the  lodes  but  keeping 
the  same  boundaries  and  kept  at  work  during  1908,  1909 
and  1910. 

Plaintiffs  entered  and  attempted  to  locate  in  1910.  The 
Court  held  that,  notwithstanding  the  statement  in  defendants' 
notices  that  they  were  relocating  abandoned  ground,  their 
continued  possession  negatived  the  intention  to  abandon  and 
that  they  held  under  their  original  title. — Peachy  v.  Gaddis, 
14  Ariz.  214,  127  P.  739. 

Double  Record  on  Same  Ground. 

The  Edith  lode  was  located%200  feet  in  length.  Discover- 
ing that  there  was  200  feet  of  vacant  ground,  the  Edith  own- 
ers made  a  new  location  1,400  feet  long,  calling  it  the  Kirby 
lode.  The  Court  held  that  the  second  location  was  a  relocation 
of  the  first  and  a  valid  claim. — Shoshone  Co.  v.  Butter,  87  F. 
801,  31  C.  C.  A.  223,  19  M.  R.  356. 


UNITED  STATES  PATENT. 


Policy  of  the  Government  As  to  Mineral  Lands. 

The  general  policy  of  the  United  States  has  been  to  pass 
the  fee  simple  title  to  its  lands  to  the  ultimate  purchaser,  but 
to  encourage  offers  to  purchase  from  settlers  and  improvers 
only.  To  extend  this  policy  into  a  system  of  land  tenure  it 
first  gives  a  general  license  to  prospect  and  discover  mineral 
value — passing  then  to  the  discoverer  the  sole  right  to  possess 
and  use,  and  finally  grants  the  title  in  fee  after  due  proof  of 
occupation  and  improvement. 


UNITED  STATES  PATENT.  169 

A  temporary  departure  from  this  rule  in  taking  an  im- 
politic royalty  from  the  miner,  based  on  Acts  of  Congress 
as  early  as  1807,  was  made  in  the  attempt  to  lease  the  lead 
an^l  copper  lands  on  the  Mississippi  and  Lake  Superior. — Lori- 
mcr  v.  Lewis,  1  Morris  (Iowa),  253,  39  Am.  Dec.  461,  12 
M.  R.  437.  But  a  return  to  the  leasing  system  has  been  made 
in  later  legislation  on  a  much  larger  scale  as  to  coal  and  oil, 
especially  in  Alaska. 

The  government  had  no  occasion  to  deal  with  lands  con- 
taining the  royal  metals  until  the  acquisition  of  California, 
upon  which  event,  instead  of  adopting  any  system  of  legisla- 
tion, it  merely  preserved  the  mineral  lands  from  sale  and 
acquiesced  in  the  asserted  rights  of  the  prospector  and  miner 
until  1866. 

In  that  year  was  passed  the  first  of  what  are  known  as  the 
Mining  Acts,  now  embraced  in  Title  32  of  the  Revised  Statutes. 
This  was  followed  by  the  Acts  of  1870  and  1872,  with  other 
slight  amendments. 

The  ultimate  intent  of  these  Acts  is  to  pass  the  fee  simple 
to  the  discoverer  of  a  mine,  or  his  grantees,  after  a  certain 
amount  of  development  has  been  made  upon  the  claim  and 
until  final  entry  the  locator  holds  by  a  possessory  title. 

Procession  of  Title. 

Title  becomes  initiate  by  discovery;  the  possessory  title  is 
complete  upon  location  and  record,  and  is  maintained  from 
year  to  year  by  compliance  with  the  condition  of  annual  labor. 
The  occupant  after  $500  expenditure  has  the  right  to  buy  the 
land  from  the  United  States  by  entry  thereof  in  the  local  land 
office.  This  entry  entitles  him  to  receive  a  patent  which  issues 
later  from  the  general  land  office  at  Washington. 

Title  After  Entry  and  Before  Patent. 

After  entry  in  the  land  office,  although  the  title  is  still 
technically  equitable,  it  amounts  practically  to  the  legal  or 
fee  simple,  because: 


170  UNITED  STATES  PATENT. 

First — The  receiver's  receipt  for  the  purchase  money  is 
evidence  of  title  in  the  purchaser,  with  or  without  statute  to 
such  effect.— Last  Chance  Co.  v.  Tyler  Co.,  61  F.  558,  9 
C.  C.  A.  613.  r<  :4 

Second — The  subsequent  issue  of  the  patent  follows  as  a 
mere  ministerial  act,  except  where  some  irregularity  has 
occurred  in  the  application,  or  a  protest  delays  or  prevents 
issue. 

Third — Before  entry  is  allowed  the  time  for  the  assertion 
of  any  adverse  title  must  have  elapsed. 

Fourth — Upon  the  issuance  of  patent,  the  fee  passes  to  the 
purchaser,  and  the  title  relates  back  in  all  cases  to  the  entry 
at  least. 

Choice  of  Land  Systems. 

It  was  in  the  power  of  the  United  States  to  have  adopted  any 
one  of  several  different  systems  in  the  disposition  of  its  mineral 
lands ;  but  at  some  stage,  under  any  system,  a  decision  of  the 
conflicting  equities  between  the  adverse  claimants  would  have 
to  be  reached. 

First — A  system  based  on  rectangular  surveys,  upon  which 
a  block  book  could  be  platted,  which  .would,  on  its  face,  estab- 
lish the  priority  of  any  assertion  of  title  to  the  block  rep- 
resenting any  certain  mining  claim,  the  same  as  adopted  in 
the  disposition  of  agricultural  lands  by  quarter-sections. 

Second — A  system  under  which  every  applicant  would 
receive  a  patent  upon  an  ex  parte  proceeding  without  regard 
to  priority  or  adverse  rights,  leaving  the  several  patentees  to 
contest  their  equities  in  the  courts  upon  an  equal  footing 
analogous  to  the  old  land  system  of  Virginia. 

Third — A  system  based  on  making  the  proceeding  to  obtain 
patent  a  proceeding  in  rem,  compelling  the  applicant  to  give 
notice  of  his  application  and  forcing  an  adjudication  of  all 
adverse  titles  before  the  issue  of  the  patent,  which  was  the 
Pennsylvania  system. 


UNITED  STATES  PATENT.  171 

The  last  is  the  system  adopted  by  the  government,  by  the 
original  Act  of  1866,  and  continued  in  all  the  amendments. 

Priorities  Adjudicated  Before  Patent  Issues. 

The  result  follows  that  upon  the  issue  of  a  patent  the 
patentee  has  got  rid  of  all  assertions  of  title  hostile  to  his  own 
title,  and  all  supposed  prior  discoveries  and  locations  which 
might  have  interfered  with  him  are  lost,  by  failure  to  assert 
them  as  adverse  claims,  or  to  prove  them  in  the  ejectment 
suit  brought  in  support  of  the  adverse  claim. — Silver  Bow  Co. 
v.  Clark,  5  Mont.  378,  5  P.  570;  Raunheim  v.  Dahl,  6  Mont. 
167,  9  P.  892;  Kannaugh  v.  Quartette  Co.,  16  Colo.  341,  27 
P.  245 ;  Seymour  v.  Fisher,  16  Colo.  188,  197,  27  P.  240. 

The  publication  required  by  the  Mining  Acts  "is  in  effect 
a  summons  to  all  persons  whose  interests  may  be.  affected 
by  the  issuance  of  a  patent,"  to  appear  and  file  their  adverse 
claims.— Wolfley  v.  Lebanon  Co.,  4  Colo.  112,  13  M.  E.  282; 
Wight  v.  Dubois,  21  F.  693. 

Poncia  v.  Eagle  is  a  case  where  an  adverse  claimant  whose 
suit  had  been  dismissed  was  held  to  have  equities  entitled  to 
protection.  There  -had  been  a  stipulation  on  the  faith  of 
which  his  adverse  proceedings  had  been  dropped. — 28  Ida.  60, 
152  P.  208. 

The  Land  Department  Issues  the  First  Patent  to  the  First 

applicant,  without  regard  to  the  priority  of  his  possessory 
title,  and  in  case  the  senior  possessory  title  fail  to  assert  its 
seniority  by  filing  and  prosecuting  its  adverse  claim,  the 
seniority  of  such  possessory  title  is  lost,  and  yields  to  the  title 
which  the  government  issues  to  the  applicant  for  patent. 

Exclusion  from  Public  Domain. 

The  Surveyor  General  shows  all  conflicts  with  previous  sur- 
veys upon  the  approved  plat,  and  notes  all  previous  official 
surveys  in  the  approved  field  notes,  but  only  approves  as  to  the 


172  UNITED  STATES  PATENT. 

correctness  of  the  survey,  not  excluding  the  area  of  priorities, 
if  their  inclusion  is  asked.  The  register  of  the  land  office, 
when  application  for  patent  is  made,  is  supposed  to  except  all 
previous  surveys  as  noted  in  the  approved  field  notes  (where 
such  surveys  have  been  followed  by  applications  for  patent), 
in  his  notice  for  publication,  which  is  the  first  period  at  which 
the  officers  of  the  United  States  recognize  the  exclusion  of  the 
claim  from  the  mass  of  the  public  domain.  From  this  point 
the  claim  so  first  excluded  must,  under  the  practice  of  the 
land  office,  be  recognized  by  all  subsequent  applicants  for  sur- 
vey as  prior  in  point  of  time,  and  they  are  compelled  to  except 
from  their  applications  such  previously  approved  surveys,  so 
duly  followed  by  filing  their  applications. 

Under  former  practice  exclusion  took  place  in  the  office 
of  the  Surveyor  General.  But  the  Surveyor  General  now 
approves  everything  within  the  exterior  boundaries  as  clear 
ground,  to  the  applicant  for  survey,  if  he  so  request,  leaving 
to  the  land  office  the  duty  of  excepting  from  his  entry  and 
patent,  prior  patents  and  applications  for  patent. 

In  former  editions  the  word  "segregation"  was  used  instead 
of  "exclusion,"  but  the  usage  of  the  department  is  to  treat 
"segregation"  as  the  separation  of  one  class  of  claims  from 
another  class  of  claims,  as,  for  instance,  when  a  lode  survey  is 
cut  out  of  a  homestead  entry,  and  the  word  "exclusion" 
refers  to  such  action  as  temporarily  or  permanently  removes  a 
tract  from  the  unoccupied  public  domain  on  the  official  cor- 
rected plat. 

Under  the  Act  of  1866  the  survey  was  not  approved  until 
after  the  application  had  been  otherwise  perfected. 

The  Doctrine  of  Relation. 

Where  successive  steps  are  essential  to  perfect  title,  as  dis- 
co-very, location,  record,  application  for  patent,  entry  and 
finally  patent,  and  during  the  progress  of  the  time  required  to 
complete  the  series  two  hostile  parties  have  taken  some  or  all  of 
these  steps  towards  obtaining  title  to  the  same  ground — the 


UNITED  STATES  PATENT.  173 

doctrine  of  relation  may  become  material  to  determine  between 
them  the  question  of  priority. 

When  discovery  is  followed  by  location  and  record  within 
the  proper  or  fixed  periods  allowed  and  entry  and  patent 
follow  in  due  course,  the  title  is  considered  in  general  and  in 
theory  to  relate  back  to  discovery.  This  theoretical  relation 
is,  of  course,  of  no  materiality  unless  a  second  title  has  inter- 
vened, and  if  a  second  title  has  intervened  at  a  period  when 
the  first  title  was  in  default  the  doctrine  of  relation  does  not 
apply. 

A  patent  always  relates  back  to  date  of  entry  at  least.  But  a 
senior  entry  on  a  junior  application  will  not  be  prior  to  the 
entry  of  the  senior  application  when  made,  because  relation 
will  carry  the  junior  entry  back  to  the  date  of  its  senior  appli- 
cation. All  three  items,  the  application,  the  entry  and  the 
patent,  are  merely  successive  steps,  and  the  latter  two  relate  to 
the  date  of  the  first. 

Many  loose  assertions  are  found  in  the  cases  on  this  topic 
of  relation,  not  taking  into  consideration  the  conditions  above 
attempted  to  be  pointed  out.  If,  in  all  cases,  a  patent  related 
back  to  discovery,  a  patent  of  today  on  a  location  of  1866 
would  supplant  a  patent  to  the  same  ground  issued  twenty 
years  ago.  Relation  never  applies  either  to  defeat  a  statute 
or  to  work  manifest  injustice. 

In  Hickey  v.  Anaconda,  Co.,  33  Mont.  46,  81  P.  806,  the 
Montana  Supreme  Court  refused  to  allow  the  law  of  relation 
to  carry  the  title  of  the  Nipper  lode  patent  back  to  the  date  of 
its  location  certificate,  a  paper  so  defective  as  to  be  void. 

The  different  classes  of  claims  to  which  it  applies  necessitate 
certain  distinctions. 

Where  Both  Are  Possessory,  the  First  Discovery  Followed 

up  by  completed  location  within  the  allowed  period  becomes 
a  title  calling  back  to  date  of  discovery,  and  by  the  doctrine  of 
relation  will  cut  out  a  possessory  title  completed  sooner  though 
initiated  later  than  the  first  discovery. — Patterson  v.  Hitch- 


174  UNITED  STATES  PATENT. 

cock,  3  Colo.  533,  5  M.  R.  542.  For  instance,  if  A  discover  a 
lode  on  January  1st  in  a  State  which  gives  sixty  days  to  sink 
discovery  and  thirty  days  more  to  record,  and  he  completes 
sinking  on  the  sixtieth  day  and  records  on  the  ninetieth  day, 
he  has  an  older  and  better  title  than  B,  who  discovers  the  same 
vein  on  January  10th,  but  promptly  completes  his  sinking  by 
the  20th  and  surveys  and  records  on  the  21st.  B  is  prior  to  A 
in  point  of  time  on  every  incident  of  location  except  discovery, 
but  A,  not  exceeding  his  statutory  limit  of  time,  is  not  in 
default  on  any  item  of  location,  clearly  calls  back  to  January 
1st  and  has  the  older  and  better  possessory  title. 

If,  on  the  other  hand,  A  allows  any  of  his  periods  to  expire 
without  doing  the  act  for  which  the  law  allowed  a  certain  time 
and  the  second  title  becomes  initiate  during  such  period  of 
lapse,  the  doctrine  of  relation  does  not  apply  and  B  has  the 
older  and  better  title. 

Patented  Claims— Failure  to  Adverse. 

Where  two  claims  overlap  or  cover  the  same  ground,  and 
one  of  them  applies  for  patent,  the  other  must  adverse  and 
maintain  its  adverse,  otherwise  it  loses  all  pretense  to  priority ; 
and  if  it  fails  so  to  do  and  afterwards  goes  to  patent  on  its 
own  application,  all  claims  to  priority  are  gone  and  it  can  not 
appeal  to  the  doctrine  of  relation  to  defeat  the  express  terms 
of  the  statute. — Eureka  Co.  v.  Richmond  Co.,  Fed.  Gas. 
No.  4548,  4  Sawy.  302,  9  M.  R.  578. 

The  above  paragraph  refers  only  to  cases  where  there  is  a 
surface  conflict.  For  if  there  be  no  surface  conflict  there  can 
be  no  adverse  and  the  rule  has  no  application. — Empire  Co.  v. 
Bunker  Hill  Co.,  114  F.  420,  52  C.  C.  A.  222,  22  M.  R.  132. 

Thus,  in  the  class  of  cases  where  two  veins  parallel  on  sur- 
face, dip  towards  each  other  and  are  found  to  unite  going 
down,  the  doctrine  of  relation  has  its  full  application  and  title 
will  be  carried  back  to  the  date  of  location,  and,  if  necessary,  to 
the  date  of  discovery  so  as  to  give  the  united  vein  to  the  title 
first  initiated  and  perfected  without  default  or  lapse. 


UNITED  STATES  PATENT.  175 

The  patent  of  an  overlap  to  the  junior  locator  conveys  the 
title  and  defeats  the  senior  location,  but  does  not  determine  as 
a  fact  the  priority  of  the  two  claims. — Clark  Montana  Co.  v. 
Butte  Co.,  233  F.  548. 

Applications  Pending  at  Same  Time. 

The  question  may  also  arise  between  two  claimants  who 
are  applying  for  patent  at  the  same  time. 

This  proceeding  begins  by  an  order  for  survey,  which  is 
followed  by  the  survey  in  the  field  and  by  its  approval  in  the 
Surveyor  General's  office.  This  approved  survey  or  the  date 
of  its  approval  determines  no  priorities.  It  is  only  when  the 
papers  reach  the  land  office  that  a  survey  becomes  "prior"  by 
its  right  to  be  excluded  from  later  applications,  and  the 
applicant  whose  area  is  excluded  in  the  land  office  becomes  the 
party  Avho  must  adverse  in  order  to  maintain  such  priority  of 
title  as  he  may  claim.— 26  L.  D.  81,  29  Id.  226.  If  he  fail  to 
adverse,  his  patent  when  obtained  will  show  the  ground 
excluded  in  favor  of  the  party  who  was  first  to  file  his  "appli- 
cation for  patent"  (form  M,  p.  560),  and  even  if  he  be  the  first 
to  enter  and  pay  and  obtain  the  receiver's  receipt,  the  entry 
when  made  of  the  survey  which  first  filed  its  "application" 
will  relate  back  to  the  date  of  such  filing. 

Double  Patent  Under  Different  Systems. 

It  may  become  material,  also,  in  any  case  where  two  parties 
hold  patents  for  the  same  ground,  which  have  been  obtained 
under  different  ex  parte  proceedings  where  there  was  no  oppor- 
tunity to  adverse  and  the  proceeding  therefore  not  a  proceed- 
ing in  rein,  as  in  a  conflict  between  school  land  and  a  mining 
claim.— Heydenfeldt  v.  Daney  Co.,  93  U.  S.  634,  23  L.  Ed.  995, 
13  M.  R.  204.  Or  between  a  lode  and  a  town  site. — Talbott  v. 
King,  6  Mont.  76,  9  P.  434;  Silver  Bow  Co.  v.  Clark,  5  Mont. 
378,  5  P.  570 ;  The  Smokehouse  Lode,  6  Mont.  397,  12  P.  858. 
Or  where  the  same  ground  has  been  patented  to  one  as  a  lode, 
to  another  as  a  placer. — Iron  8.  Co.  v.  Campbell,  135  U.  S. 
286,  34  L.  Ed.  155,  10  Sup.  Ct.  Rep.  765, 16  M.  R.  218. 


176  UNITED  STATES  PATENT. 

Excluded  Area. 

It  is  the  practice  of  the  department  to  exclude  from  <>::<-h 
later  patent  all  claims  which  have  land  office  priority,  and  the 
junior  patentee  has  no  right  under  his  patent  to  follow  any 
vein  on  its  strike  through  the  area  reserved  in  favor  of  such 
excluded  survey. — Montana  Co.  v.  Boston  Co.,  20  Mont.  336, 
51  P.  159,  19  M.  R.  186.  And  where  such  exclusion  plainly 
appears,  and,  adhering  strictly  to  the  ruling  in  the  case  just 
cited,  it  can  hardly  be  said  that  there  are  two  grants  of  the 
same  thing,  although  each  lode  patent  is  issued  on  the  theory 
that  it  covers  so  many  lineal  feet  on  the  vein.  Where,  owing  to 
error  in  the  surveys,  there  is  in  fact  no  conflict,  the  excluded 
area  belongs  to  the  patentee. — 45  L.  D.  10. 

Where  a  conflicting  area  has  been  allowed  to  go  to  a  senior 
patent  it  does  not  make  that  patent  senior  except  as  to  the 
overlap.— U.  S.  M.  Co.  v.  Lawson,  134  F.  769,  67  C.  C.  A.  587. 

The  Nature  of  the  Merger  of  the  Possessory 

into  the  patented  title  is  learnedly  discussed  in  Black  v.  Elk- 
horn  Co.,  49  F.  549 ;  affirmed  52  F.  859,  3  C.  C.  A.  312,  163 
U.  S.  445,  41  L.  Ed.  221,  16  Sup.  Ct.  Rep.  1101,  18  M.  R.  375. 

What  It  Conveys. 

A  patent  covers  blind  lodes  within  and  underneath  its  lines. 
—Calhoun  Co.  v.  Ajax  Co.,  27  Colo.  1,  59  P.  608,  83  Am.  St. 
Rep.  17,  50  L.  R.  A.  209,  20  M.  R.  192 ;  affirmed  182  U.  S.  499, 
45  L.  Ed.  1200,  21  Sup.  Ct.  Rep.  885,  21  M.  R.  381.  The  sur- 
face, and  the  right  to  follow  on  the  dip  veins  apexing  within 
its  lines.— Empire  Co.  v.  Bunker  Hill  Co.,  114  F.  420,  52 
C.  C.  A.  222,  22  M.  R.  132.  The  surface  although  the  vein  has 
left  the  side  lines. — Argonaut  Co.  v.  Turner,  23  Colo.  400,  48  P. 
685,  58  Am.  St.  Rep.  245,  18  M.  R.  556. 

An  ore  body  within  the  patented  lines  presumptively  belongs 
to  the  owner  of  the  patent. — Steivart  Co.  v.  Bourne,  218  F. 
327,  134  C.  C.  A.  123 ;  affirmed  Stewart  Co.  v.  Ontario  Co.,  237 
U.  S.  350,  59  L.  Ed.  989,  35  Sup.  Ct.  Rep.  610. 


UNITED  STATES  PATENT.  177 

Conclusiveness  As  to  Title. 

A  patent  is  conclusive  in  all  suits  at  law  (1)  when  valid  on 
its  face  and  (2)  when  not  issued  in  opposition  to  law.  In  any 
such  case  it  is  a  final  disposition  of  the  legal  title  and  must  be 
recognized  by  courts  and  allowed  such  effect. — Boggs  v.  Mer- 
ced Co.,  14  Cal.  279,  10  M.  R.  334.  It  is  also  conclusive  as  to 
the  bounds  or  limits  of  the  claim. — Waterloo  Co.  v.  Doe,  56  F. 
685,  17  M.  R.  586.  Patent  is  conclusive  evidence  that  there 
had  been  a  sufficient  location  notice. — Chambers  v.  Jones,  17 
Mont.  156,  42  P.  758 ;  that  a  valid  discovery  and  location  had 
been  made;  that  the  required  expenditure  showed  on  the 
ground  and  that  the  patentee  is  owner  of  all  veins  enclosed  by 
his  survey.— Carson  City  Co.  v.  North  Star  Co.,  83  F.  658,  28 
C.  C.  A.  333,  19  M.  R.  118.  It  is  a  conclusive  presumption  that 
there  is  the  apex  of  a  vein  within  the  patented  ground. — Or. 
Central  M.  Co.  v.  Mammoth  Co.,  29  Utah  490,  83  P.  643,  668. 

It  is  conclusive  evidence  of  a  prior  location  as  to  all  claims 
having  surface  conflicts  not  excluded  from  its -area. — Empire 
Co.  v.  Bunker  Hill  Co.,  114  F.  420,  52  C.  C.  A.  222,  22  M.  R. 
132.  And  of  a  valid  discovery. — Calhoun  Co.  v.  Ajax  Co.,  182 
U.  S.  499,  45  L.  Ed.  1200,  21  Sup.  Ct.  Rep.  885,  21  M.  R.  381 ; 
Stewart  Co.  v.  Bourne,  218  F.  327,  134  C.  C.  A.  123. 

The  patent  is  not  only  conclusive  evidence  that  there  was 
mineral  discovered  before  it  issued  but  that  all  State  as  well 
as  federal  prerequisites  were  complied  with. — Work  M.  Co.  v. 
Doctor  Jack  Pot  M.  Co.,  194  F.  620,  114  C.  C.  A.  392. 

But  the  case  of  Uinta  Co.  v..  Creede  Co.,  119  F.  164,  22 
M.  R.  445,  makes  the  distinction  that  where  a  hostile  claim  has 
had  no  opportunity  to  contest  the  issue  of  the  patent,  as,  for 
instance,  where  a  lode  has  been  patented  across  the  line  of  a 
tunnel  before  it  was  cut  in  the  tunnel,  the  patent  is  not  con- 
clusive evidence  of  a  valid  discovery  as  against  the  asserted 
rights  of  such  tunnel. 

The  facts  were  these :  The  lode  was  located  before  the  tun- 
nel site  was  located.  After  both  locations  the  lode  was  pat- 
ented. The  tunnel  owner  on  reaching  the  claim,  which  crossed 


178  UNITED   STATIC  PATEM1. 

the  line  of  the  tunnel,  had  no  right  to  cross,  if,  in  fact,  a  valid 
location  of  the  lode  claim  had  been  made  before  the  tunnel 
was  started. 

The  tunnel  owners  claimed  that  there  was  in  fact  no  valid 
discovery  on  the  lode  claim  before  the  location  of  the  tunnel 
site.  The  lode  owners  contended  that  the  patent  was  con- 
clusive evidence  that  it  had  a  legal  discovery  at  the  time 
claimed  in  its  location  certificate,  but  the  Appellate  Court 
sustained  the  reasoning  of  the  Circuit  Court  of  Appeals  and 
held  in  favor  of  the  tunnel  site.— 196  U.  S.  337,  49  L.  Ed.  501, 
25  Sup.  Ct.  Rep.  266.  Followed  on  like  facts  in  Uinta  Co.  v. 
Ajax  Co.,  141  F.  563,  73  C.  C.  A,  35. 

Conclusiveness  As  to  Mineral  Character  of  Land. 

See  p.  252. 

Patent— When  Void. 

If  not  valid  on  its  face  or  if  issued  in  spite  of  a  law  which 
forbade  its  issuance,  it  is  an  inoperative  paper,  and  may  be 
passed  upon  and  excluded  in  a  suit  at  law — because  it  is  void. 
—Kahn  v.  Old  Telegraph  Co.,  2  Utah  174,  11  M.  R.  646 ;  St. 
Louis  Co.  v.  Kemp,  104  U.  S.  636,  26  L.  Ed.  875,  11  M.  R.  673 ; 
Garrard  v.  S.  P.  Mines,  82  F.  578.  A  patent  for  a  lode  in 
excess  of  legal  width  has  been  held  void. — Lakin  v.  Dolly,  53 
F.  333 ;  Lakin  v.  Roberts,  54  F.  461,  4  C.  C.  A.  438 ;  but  other- 
wise as  to  patent  perfecting  locations  made  prior  to  the  Act  of 
1872. — Carson  City  Co.  v.  North  Star  Co.,  supra. 

Patent-When  Voidable. 

But  if  only  irregular,  or  obtained  by  fraud,  or  issued  to  the 
wrong  party,  it  is  only  voidable,  and  must,  until  set  aside, 
or  a  trust  declared  thereon,  be  taken  as  conclusive  both  at  law 
and  in  equity. — Silver  Bow  Co.  v.  Clark,  5  Mont.  378,  5  P.  570 ; 
Rose  v.  Richmond  Co.,  17  Nev.  26,  27  P.  1105. 

A  patent  is  not  void  as  to  the  excess  from  the  fa  ft  that  it 
conveys  more  than  300  feet  from  the  center  of  the  lode. — 


UNITED  STATES  PATENT.  179 

Pcabody  Co.  v.  Gold  Hill  Co.,  97  F.  657,  111  F.  818,  49 
<J.  C.  A.  637,  21  M.  R.  591. 

The  Land  Office  Can  Not  Insert  Conditions  or  Exceptions 

not  authorized  by  law,  in  a  patent. — Deffeback  v.  Hawke,  115 
U.  S.  392,  29  L.  Ed.  423,  6  Sup.  Ct.  Eep.  95 ;  Clary  v.  Hazlitt, 
67  Gal.  286,  7  P.  701;  Talbott  v.  King,  6  Mont.  76,  9  P.  434; 
'Silver  Bow  Co.  v.  Clark,  supra,;  Davis  v.  Weibbold,  139  U.  S. 
527,  35  L.  Ed.  238, 11  Sup.  Ct  Rep.  628. 

All  Presumptions  in  Its  Favor. 

When  a  patent  is  judicially  attacked  all  presumptions  are 
indulged  to  its  favor.  It  will  be  assumed  that  everything  was 
done  which  the  law  required  to  be  done,  and  mere  irregulari- 
ties, though  proved,  will  not  impeach  it. — U.  S.  v.  Marshall 
Co.,  129  U.  S.  579,  32  L.  Ed.  734,  9  Sup.  Ct.  Rep.  343, 16  M.  R. 
205 ;  U.  8.  v.  Iron-Silver  Co.,  128  U.  S.  673,  32  L.  Ed.  571,  9 
Sup.  Ct.  Rep.  195  j  Galbraith  v.  Shasta  Co.,  143  Cal.  94, 
76  P.  901. 

Placer  Patented  As  Lode  Claim. 

It  is  no  fraud  upon  the  government  that  placer  ground 
has  been  patented  as  a  lode  claim  at  a  greater  price  per  acre. 
—Peabody  Co.  v.  Gold  Hill  Co.,  Ill  F.  818,  49  C.  C.  A.  637, 
21  M.  R.  591. 

Suits  by  U.  S.  to  Annul  Patent. 

When  obtained  by  fraud  against  the  United  States,  as 
where  mineral  land  has  been  entered  as  agricultural,  or  upon 
false  representations,  the  false  representations  being  material, 
the  application  to  set  aside  being  made  without  too  great  delay 
and  innocent  buyers  being  to  a  certain  extent  protected — it 
may  be  set  aside  at  the  suit  of  the  United  States.  This  re- 
quires action  by  the  Attorney  General,  Avho  directs  the  U.  S. 
District  Attorney  to  bring  suit  in  tin.1  l;:<.'ul  Fedora]  Court.-  — 


180  UNITED  STATES  PATENT. 

Boggs  v.  Merced  Co.,  14  Cal.  279,  10  M.  R.  334;  Mullan  v. 
U.  8.  118  U.  S.  271,  30  L.  Ed.  170,  6  Sup.  Ct.  Rep.  1041 :  U.  S. 
v.  Iron-Silver  Co.,  128  U.  S.  673,  32  L.  Ed.  571,  9  Sup.  Ct. 
Rep.  195. 

Such  action  lies  where  the  patent  has  issued  through  fraud, 
mistake  or  erroneous  views  of  law  by  the  Land  Department. — 
U.  S.  v.  Winona  Co.,  67  F.  948,  15  C.  C.  A.  96.  See  STATUTE 
OF  LIMITATIONS. 

A  patent  will  not  be  set  aside  for  fraud  where  the  prop- 
erty has  passed  into  the  hands  of  a  bona  fide  purchaser  with- 
out notice.— Colo.  C.  &  I.  Co.  v.  U.  8.,  123  U.  S.  307,  31  L.  Ed. 
182,  8  Sup.  Ct.  Rep.  131  j  U.  S.  v.  Clark,  138  F.  294,  70 
C.  C.  A.  584. 

Degree  of  Proof. 

In  suits  to  set  aside  a  patent  or  to  declare  a  trust  in  favor  of 
another  claimant,  the  proof  to  'overcome  the  presumptions  in 
favor  of  the  patent  must  be  clear  and  convincing. — U.  S. 
.v.  King,  83  F.  188,  27  C.  C.  A.  509;  Thallman  v.  Thomas, 
111  F.  277,  49  C.  C.  A.  317,  21  M.  R.  573. 

It  will  not  be  reformed  in  equity  to  correct  a  misdescription 
where  the  monuments  can  not  be  reset  with  certainty. — Thall- 
man v.  Thomas,  102  F.  935,  Affirmed  111  F.  277,  49  C.  C.  A. 
317,  21  M.  R.  573. 

Where  Issued  to  the  Wrong  Party  in  Fraud  of  the  Right 

of  the  real  ow^ier,  the  suit  is  not  to  set  the  patent  aside,  but  to 
have  it  declared  that  the  party  to  whom  it  issued  holds  in 
trust,  and  to  compel  by  decree  of  court  a  conveyance  from  him 
to  the  party  to  whom  it  should  have  issued. — Burke  v.  S.  Pac. 
R.  Co.,  234  U.  S.  670,  58  L.  Ed.  1527,  34  S.  Ct.  Rep.  907. 

The  Federal  Courts  have  jurisdiction  of  such  cases  inde- 
pendent of  the  citizenship  of  the  parties. — Gates  v.  Producers 
Co.,  96  F.  7. 

Such  a  suit  can  not  be  maintained  on  mere  priority  of  title, 
for  here  an  adverse  claim  should  have  been  filed,  but  only  on 
the  allegation  of  breach  of  trust  or  in  like  instances. 


UNITED  STATES  PATENT.  181 

A  party  who  had  at  the  time  of  its  issue  no  claim  of  title  to 
the  land  patented  has  no  standing  to  attack  it  for  fraud 
practiced  on  the  land  department. — Peabody  Co.  v.  Gold  Hill 
Co.,  Ill  F.  817,  49  C.  C.  A.  637;  21  M.  R.  591. 

Irrevocable — No  Second  Patent. 

After  a  patent  has  issued,  the  land  office  has  no  power  to 
cancel  or  recall  the  same  nor  to  issue  a  second  patent  for  the 
same  land  to  another  party. — Moore  v.  Robbiiis,  96  U.  S.  530, 
24  L.  Ed.  848. 

\ 
Wrong  Description. 

Where,  by  reason  of  erroneous  survey  or  other  mistake,  the 
patent  describes  other  land  than  that  actually  applied  for,  it 
may  be  corrected  upon  surrender  of  the  patent. — 22  L.  D.  101, 
28  Id.  307,  29  Id.  160,  36  Id.  243,  44  Id.  173. 

The  courses  and  distances  in  the  field  notes  and  in  the  patent 
are  not  conclusive  of  the  true  position  of  the  monuments. 
— Gr.  Cent.  M.  Co.  v.  Mammoth  Co.,  36  Utah  364,  Ann.  Gas. 
1912A,  254, 104  P.  573. 

Title  by  Receiver's  Receipt. 

After  valid  entry  its  holder  has  a  vested  estate,  and  the  land 
has  ceased  to  be  public  domain. — Bader  v.  Allen,  27  Or.  344, 
41  P.  154 ;  McKnigkt  v.  El  Paso  Co.,  16  N.  M.  721,  Ann.  Gas. 
1912D,  1309,  120  P.  694. 

Canceling  Receiver's  Receipt. 

The  land  office  has  the  power  to  cancel  the  receiver's  receipt 
and  all  preliminary  proceedings,  and  frequently  exercises  this 
power  in  case  of  irregularities  in  the  application.  But  the 
cancellation  of  the  receiver's  receipt  does  not  make  the  ground 
open  to  relocation.  McKnight  v.  El  Paso  Co.,  supra. 

Land  Office  Adjudications. 

"When  the  question  of  priority  between  patentees  has  been 
contested  and  adjudicated  in  the  land  office  the  findings 


182  INTERFERENCE  OF  CLAIMS. 

within  its  jurisdiction  on  matters  of  fact  or  mixed  law  and 
fact,  in  the  absence  of  fraud  or  imposition,  are  accepted  by  the 
courts  as  conclusive. — Jeffords  v.  Iline,  2  Ariz.  162,  11  P.  351, 
15  M.  E.  575 ;  Aurora  Hill  Co.  v.  85  Co.,  34  F.  515,  12  Sawy. 
355, 15  M.  R.  581 ;  McKnight  v.  El  Paso  Co.,  supra. 

Squatters'  Rights. 

A  prior  occupant  of  public  land  who  takes  no  steps  to  perfect  - 
his  title  and  allows  it  to  go  to  patent  to  another  has  no  claim 
either  to  title  or  to  be  reimbursed  for  his  improvements. — 
Helstrom  v.  Rodes,  30  Utah  122,  83  P.  730;  Le  Fevre  v.  Amon- 
son,  11  Ida.  45,  81  P.  71,  42  L.  D.  113. 

The  rights  of  the  first  occupant  must  give  way  to  the  rights 
of  the  one  who  later  enters  in  pursuance  of  some  one  of  the 
systems  under  which  the  government  parts  with  its  title.  But 
the  squatter,  as  against  a  placer  claimant,  has  the  right  to 
prove  that  the  land  was  non-mineral  or  to  attack  the  proposed 
location  of  it  in  any  other  respect. — Zeiger  v.  Dowdy,  13  Ariz. 
331,  114  P.  565. 


INTERFERENCE  OF  CLAIMS. 
Veins  Uniting  on  Strike  or  Dip. 

R.  S.  Sec.  2336. — Where  two  or  more  veins  intersect  or  cross  each 
other,  priority  of  title  shall  govern,  and  such  prior  location  shall  be 
entitled  to  all  ore  or  mineral  contained  within  the  space  of  intersection; 
but  the  subsequent  location  shall  have  the  right  of  way  through  the  space 
of  intersection  for  the  purposes  of  the  convenient  working  of  the  mine. 
And  where  two  or  more  veins  unite,  the  oldest  or  prior  location  shall  take 
the  vein  below  the  point  of  union,  including  all  the  space  of  intersection. 
— Sec.  14,  May  10,  1872. 

Mining  Acts  Based  on  Erroneous  Presumption  As  to  Facts — 

Irregularity  of  Veins. 

The  cause  of  the  principal  question  under  this  heading  is  the 
fact  that  the  U.  S.  Mining  Acts  concerning  lode  claims  are 
based  on  the  supposition  or  theory  that  a  lode  is  a  straight  vein 


INTERFERENCE  OF  CLAIMS.  163 

whose  course  can  be  readily  ascertained  and  indicated  by  a 
straight  line  or  a  series  of  straight  lines;  and  that  occasion- 
ally such  a  vein  is  crossed  by  another  in  a  similar  straight  line, 
merely  requiring  the  right  of  way  to  give  each  claim  its  proper 
lode.  But  in  fact  a  lode  is  rarely  a  straight  line ;  it  is  seldom 
to  be  traced  without  confusion  for  more  than  a  few  hundred 
feet;  and  in  its  course  other  veins  are  absorbed  into  it;  and 
offshoots  (not  only  spurs,  but  perhaps  better  developed  veins 
than  itself)  run  from  it;  and  in  its  extension  downward,  it 
invariably  dips  laterally;  and  often  shows  a  fork  of  which 
both  parts  approach  the  surface;  and  it  will  divide,  and  may 
or  may  not  unite  at  another  point ;  and  it  will  abut  suddenly 
upon  country  rock  and  so  be  thrown  far  to  one  side;  and 
instead  of  showing  distinct  lines,  mineral  veins  are  as  irregu- 
lar, as  disproportioned  in  length  and  width,  as  much  inter- 
mingled, though  on  a  larger  scale,  as  are  the  veins  in  a  block 
of  marble. 

The  theory  that  each  survey  covers  a  distinct  vein,  or  that  a 
survey  covers  any  vein  at  all,  or  that  its  center  line  follows 
the  apex  of  the  vein,  or  that  its  discovery  shaft  is  sunk  on  a 
vein,  is  all  bare  assumption — these  points  depend  upon  de- 
velopments, and  not  on  diagrams  or  surface  surveys. 

Presumption  That  Survey  Covers  the  Vein. 

But  upon  proof  of  discovery  and  location  it  is  inferred  that 
the  survey  lines  include  the  apex  of  the  vein,  and  this  pre- 
sumption throws  the  burden  of  proof  on  the  party  alleging  a 
departure. — Armstrong  v.  Lower,  6  Colo.  581,  585,  15  M.  R. 
458;  WaJceman  v.  Norton,  24  Colo.  192,  18  M.  E.  698,  49 
P.  283. 

The  interference  of  veins  by  uniting  on  the  strike,  or,  more 
commonly,  the  interference  of  claims  by  the  holder  of  one  part 
of  a  blind  lode  developing  into  another  part  of  the  same  lode 
located  by  another  as  a  separate  lode — was  of  vital  importance 
before  the  Act  of  1872,  because  surface  lines  were  not  marked 
and  each  claimant  was  supposed  to  follow  his  vein  wherever 
it  ran.  But  under  present  law  the  surface  lines  and  the  apex 


184  INTERFERENCE  OF  CLAIMS. 

within  them  in  general  define  the  rights  of  all  parties,  with 
the  obvious  exception  of: 

First — Cross  lodes. 

Second — Veins  uniting  on  the  dip — which  points  are  con- 
sidered in  the  next  two  chapters. 

Overlapping  Surveys. 

The  holder  of  the  oldest  patent,  i.  e.,  in  general  the  patent 
which  has  the  senior  entry,  holds  all  veins  which  apex  within 
the  area  of  conflict. — Montana  Co.  v.  Boston  Co.,  20  Mont.  336, 
19  M.  R.  186,  51  P.  159.  The  same  rule  applies  in  favor  of  the 
older  title  where  both  are  possessory.  Where  one  is  patented 
and  the  other  is  possessory  the  patented  claim  holds  because 
(1)  it  may  always  have  been  the  earlier  title,  and  (2)  if  not,  it 
has  become  so  by  the  failure  of  the  overlapper  to  adverse. — • 
Empire  Co.  v.  Bunker  Hill  Co.,  114  F.  420,  52  C.  C.  A.  222, 
22  M.  R.  132. 

Where  there  are  overlapping  surveys,  the  side  lines  of  the 
senior  claim  do  not  become  the  end  lines  of  the  junior  claim 
when  the  location  extends  beyond  the  intersecting  claims. — 
Cheesman  v.  Hart,  42  F.  98,  16  M.  R.  263.  Lines  may  be  law- 
fully extended  over,  and  stakes  set  upon,  prior  locations  so  as 
to  secure  parallel  end  lines  or  for  any  other  legitimate  pur- 
pose.—Del  Monte  v.  Last  Chance  Co.,  171  U.  S.  55,  43  L. 
Ed.  72,  18  Sup.  Ct.  Rep.  895,  19  M.  R.  370;  McElligott  v. 
Krogh,  151  Cal.  126,  90  P.  823. 

A  subsequent  location  is  entitled  to  the  overlap  on  any  part 
of  a  prior  location  which  is  not  legally  held  by  such  prior  loca- 
tlou.—McPherson  v.  Julius,  17  S.  D.  98,  95  N.  W.  428. 


CKOSS  LODES.  185 

CROSS  LODES. 


Priority  of  Title  Controls. 

R.  S.  Sec.  2336. — Where  two  or  more  veins  intersect  or  cross  each 
other,  priority  of  title  shall  govern,  and  such  prior  location  shall  be 
entitled  to  all  ore  or  mineral  contained  within  the  space  of  intersection; 
but  the  subsequent  location  shall  have  the  right  of  way  through  the  space 
of  intersection  for'  the  purposes  of  the  convenient  working  of  the  mine, 
•grfi  *  —Sec.  14,  A.  C.  May  10,  1872. 

The  above  section,  being  a  single  section  of  an  entire  Act, 
must,  if  ambiguous,  be  compared  with  all  other  sections  of  the 
same  Act  Avhich  have  any  bearing  on  the  subject  matter.  The 
only  other  pertinent  portion  of  the  Act  is  that  part  of  section 
2322  which  says : 

The    locators    of    all    mining    locations     *     *     *     where    no    adverse 

claim  exists  on  the  tenth  day  of  May,  eighteen  hundred  and  seventy-two, 

*     shall  have  the  exclusive  right  of  possession  and  enjoyment  of 

all  the  surface  included  within  the  lines  of  their  location,  and  of  all 

veins,  lodes,  and  ledges  throughout  their  entire  depth,  the  top  or  apex  of 

which   lies   inside   of   such   surface-lines    extended   downward   vertically. 
»     *     » 

In  the  case  of  lodes  located  under  or  before  the  Act  of 
1866,  a  right  of  way  is  clearly  granted  under  the  two  sections 
above  quoted.  Those  old  claims  held  but  a  single  vein,  and 
the  owners  of  any  other  vein  had  a  right  to  work  up  to  the 
very  wall  of  the  crossed  vein.  Such  being  the  case,  the  Act  of 
May  10,  1872,  merely  added  the  easement  of  the  right  to 
work  through  the  crossed  vein ;  but  as  to  lodes  located  under 
the  Act  of  May  10,  1872,  the  matter  is  complicated  by  the 
fact  that  all  claims  under  that  Act  have  a  width  ranging  from 
50  to  600  feet,  and  that  all  veins  within  such  distance  have 
been  granted  to  the  owner  of  the  claim  as  fully  as  the  vein 
upon  which  his  discovery  is  sunk. 

Title  to  the  Space  of  Intersection. 

The  question  has  been  often  stated  in  this  form:  "Does 
the  space  of  intersection,  mentioned  in  section  2336,  mean  the 
space  of  the  actual  crossing  of  the  veins — or  the  space  through 


186  CROSS  LODES. 

which  the  cross  lode  runs  from  side  line  to  side  line  ? ' '  But 
this  question  does  not  reach  the  merits  and  is  based  upon  a 
misunderstanding  or  a  want  of  due  attention  to  the  words  of 
the  Act. 

If  the  cross  lode  have  the  right  of  crossing  at  the  point  of 
actual  vein  crossing  only,  how  is  it  to  be  worked  across  the 
ground  between  the  side  line  and  the  space  of  actual  vein 
intersection  ?  Of  what  avail  would  such  a  right  of  crossing  be 
to  those  owning  no  easement  or  estate  in  such  intervening 
ground?  It  is  clear  then  that  to  make  the  Act  have  a  just 
and  sensible  meaning  the  "space  of  intersection"  refers  to 
the  whole  distance  from  side  line  to  side  line,  and  this  being 
conceded,  the  real  question  remains :  "To  whom  does  the  cross 
vein  belong,  throughout  the  space  of  intersection  from  side  line 
to  side  line?" 

Sec.  2322  had  already  granted  it  to  the  prior  owner  of  the 
crossed  lode.  It  was  within  the  power  of  Congress,  by  a  sub- 
sequent clause,  to  have  made  the  crossing  lode  an  exception 
carved  out  of  the  general  grant  of  the  words  of  the  previous 
section;  but  has  it  attempted  so  to  do?  The  only  grant  of 
section  2336  is,  the  right  of  way,  which  of  itself  implies  that 
it  was  not  a  grant  of  the  vein,  but  of  an  easement  to  which  the 
estate  of  the  prior  location  is  made  servient. 

To  give  any  part  of  the  space  of  intersection  to  the  holder  of 
the  later  location  would  be  to  take  from  the  older  location 
something  already  granted  to  it.  To  create  an  exception  out 
of  his  grant  as  he  originally  takes  it  under  the  Act  of  Congress 
would  require  in  the  wording  of  the  Act  expressions  as  strong 
as  are  required  to  create  an  exception  in  a  deed.  An  exception 
is  equivalent  to  the  reconveyance  of  land  already  conveyed. 
A  right  of  way  is  not  an  exception,  but  a  reservation  which 
may  be  inferred  from  any  wording  indicating  an  intention  to 
create  an  easement.  It  takes  nothing  from  the  body  of  the 
grant  of  the  first  locator ;  but  compels  the  first  locator  to  use  or 
hold  his  grant  or  claim  subject  to  a  right  or  privilege  to  the 
junior  or  overlapping  claimant,  of  reaching  the  other  end  of 
his  claim  by  passage  through  the  senior  location. 


CROSS  LODES.  187 

It  seems  to  the  authors,  from  the  above  reasoning,  that  a 
cross  lode  takes  no  estate  in  the  claim  it  crosses  and  has  no 
rights  as  against  the  crossed  claim  except  the  mere  right  to 
drift  through,  leaving  all  ore  as  the  property  of  the  crossed 
claim. 

Decisions  As  to  Rights  of  Cross  Lodes. 

All  recent  cases  are  in  agreement  with  these  views. — Pardee 
v.  Murray,  4  Mont.  234,  15  M.  R.  515,  2  P.  16 ;  Watervale  Co. 
v.  Leach,  4  Ariz.  34,  33  P.  418,  17  M.  R.  568 ;  Wilhelm  v.  Syl- 
vester, 101  Cal.  358,  35  P.  997 ;  Calhoun  Co.  v.  Ajax  Co.,  27 
Colo.  1,  83  Am.  St.  Rep.  17,  50  L.  R.  A.  209,  20  M.  R.  192,  59 
P.  607;  the  latter  overrules  the  case  of  Branagan  v.  Dulaney, 
8  Colo.  408,  8  P.  669,  which  had  been  so  often  cited  against 
the  above  construction.  The  Ajax  case  was  affirmed  in  182 
U.  S.  499,  45  L.  Ed.  1200,  21  Sup.  Ct.  Rep.  885,  21  M.  R.  381. 

Cross  Surveys — Veins  Merging. 

The  fact  that  the  surveys  cross  does  not  necessarily  raise 
the  question  of  cross  lodes.  There  must  be  an  actual  crossing 
of  the  veins,  and  if  one  vein  unite  with  the  other  on  the  strike 
the  vein  beyond  the  point  of  union  belongs  to  the  holder  of  the 
older  patent.— Lee  v.  StaM,  13  Colo.  174,  16  M.  R.  153,  22  P. 
436 ;  Book  v.  Justice  Co.,  58  F.  106,  17  M.  R.  617. 

There  must  be  two  separate  mineral  veins  to  make  a  cross- 
ing within  the  law. — Morgenson  v.  Middlesex  Co.,  11  Colo.  176, 
17  P.  513 ;  Omar  v.  Soper,  11  Colo.  380,  389,  7  Am.  St.  Rep. 
246,  15  M.  R.  496,  18  P.  443. 

The  Burden  of  Proof  Is  on  the  Party  Alleging  a  Crossing. 

— Lee  v.  Stahl,  supra.  The  evidence  may  be  sufficient  to  prove 
that  veins  unite  without  being  sufficient  to  prove  that  they 
cross.— Clark  Montana  Co.  v.  Butte  Co.,  233  F.  548. 

No  Right  to  Enter  to  Prove  Crossing. 

The  actual  crossing  of  lodes  is  more  often  a  matter  of  con- 
jecture than  proof,  and  upon  the  conjecture  of  a  crossing  a 


188  VEINS  UNITING  ON  DIP. 

party  has  no  right  to  enter  upon  the  crossed  claim  to  prospect 
for  his  lode  or  prove  the  crossing.  The  latter  clause  of  section 
2322  contains  a  proviso  against  the  use  of  the  surface  in  any 
such  case.  The  right  of  crossing  can  be  exercised  only  by 
following  the  vein  from  some  point  outside  of  the  crossed  claim 
to  a  point  where  it  enters  the  crossed  claim,  and  thence  by 
drift  along  the  same.— Atkins  v.  Hendree,  1  Ida.  95,  107,  2 
M.  R.  328. 

Settlements  Between  Cross  Lode  Owners  Will  Be  Upheld, 

although  they  were  at  the  time  ignorant  of  their  strict  legal 
rights.— Coffee  v.  Emigh,  15  Colo.  184,  10  L.  R.  A.  125,  25 
P.  83. 

As  Between  Grantor  and  Grantee  the  Grantor  Can  Not 

claim  any  implied  right  to  cross  the  granted  ground  on  pre- 
tense of  following  a  cross  vein.  He  has  conveyed  all  veins 
apexing  within  the  granted  area. — Stinchfield  v.  Gillis,  107 
Cal.  84,  18  M.  R.  195,  40  P.  98. 


VEINS  UNITING  ON  THE  DIP. 


Prior  Location  Takes  Title. 

E.  S.  Sec.  2336. —  *  *  *  Where  two  or  more  veins  unite,  the 
oldest  or  prior  location  shall  take  the  vein  below  the  point  of  union, 
including  all  the  space  of  intersection. — Sec.  14,  May  10,  1872. 

The  above  paragraph  follows  that  part  of  section  2336 
which  says  that  "priority  of  title  shall  govern"  in  case  of 
interference  of  veins  on  their  strike. 

It  often  happens  that  on  developing  two  veins  by  shafts 
from  surface  they  are  found  to  unite  as  they  go  down.  A 
vertical  section  of  the  two  lodes  in  such  case  gives  the  form  of 
the  letter  "Y."  Where  both  claims  are  possessory,  the  elder 


VEINS  UNITING  ON  DIP.  189 

title,  t.  v.,  the  older  discovery  properly  followed  by  location 
and  record,  takes  the  vein  below  the  point  of  union.  If  both 
are  patented,  or  if  only  one  is  patented,  the  obvious  question 
is :  Does  the  first  patent  hold  on  account  of  failure  of  the  first 
discovery  to  adverse,  or  does  the  first  discovery  hold? 

In  the  case  of  the  Champion  Co.  v.  Cons.  Wyoming  Co.,  75 
Cal.  78,  16  M.  R.  145,  16  P.  513,  the  two  lodes  in  controversy 
so  came  together  at  about  500  feet  in  depth.  The  "Wyoming 
lode  was  patented  in  1874.  The  Phillip  lode  claimed  to  be  a 
location  prior  in  date  to  the  Wyoming,  but  was  not  able  to 
prove  such  allegation,  and  therefore  had  no  state  of  facts 
upon  which  the  Court  could  properly  decide  this  point  and 
interpret  the  statute.  Still,  they  intimated  that  the  older 
possessory  title  would  hold  \vithout  regard  to  patent.  In  the 
case  of  Lee  v.  Staid,  13  Colo.  174,  16  M.  R.  153,  22  P.  436, 
which  involved  the  rights  of  cross  lodes  only,  the  Court  in 
argument  leaned  to  the  same  construction. 

But  the  point  has  been  since  expressly  decided  and  always 
to  the  same  result,  to-wit :  in  favor  of  the  older  location. — Lit- 
tle Josephine  Co.  v.  Fullerton,  58  F.  521,  7  C.  C.  A.  340,  17 
M.  R.  664;  Cons.  Wyoming  Co.  v.  Champion  Co.,  63  F.  540, 
18  M.  R.  113.  See  also  Esselstyn  v.  U.  S.  Corp.,  59  Colo.  294, 
149  P.  93. 

Where  the  apex  is  covered  by  two  surveys  the  senior  loca- 
tion owns  the  vein  below  the  line  of  union.  The  junior  location 
can  claim  no  apex  rights  to  the  vein  below  such  line.  It  may 
claim  apex  rights  to  part  of  the  vein  beyond  the  point  where 
it  has  been  covered  by  the  senior  location.  Any  part  of  the 
vein  not  within  the  protracted  end  lines  fixing  the  apex  planes 
belongs  to  the  owner  of  the  claim  whose  vertical  lines  embrace 
it  under  the  claimant's  common  law  right. — Anaconda  Co.  v. 
Pilot  Butte  Co.  (Mont.),  156  P.  409.  The  ruling  cites  and 
disapproves  the  prior  case  of  Eoxannn  Co.  v.  Cone,  100  F.  168, 
20  M.  R.  323,  although  the  facts  in  the  two  cases  when  closely 
analyzed  are  not  very  similar. 


190  SIDE  VEINS. 

Relation — Presumption. 

Even  if  suspected,  such  union  would  rarely  be  provable  in 
time  to  support  an  adverse  claim,  and  even  if  known  an  adverse 
claim  could  not  be  brought  because  an  adverse  is  allowed  only 
where  there  is  a  surface  conflict. — 6  L.  D.  320.  The  doctrine 
of  relation  back  to  discovery,  therefore,  applies,  but  the  date 
of  discovery  and  of  the  respective  acts  of  location  are  open  to 
parol  proof.  If  the  union  becomes  known  or  comes  in  contest, 
as  it  generally  does  after  both  lodes  are  patented,  there  exists 
a  presumption  in  favor  of  each  that  it  had  a  valid  discovery 
and  location  at  the  date  of  entry,  but  there  is  no  conclusive 
presumption  that  the  date  of  discovery  or  of  location  claimed 
by  the  recorded  .location  certificate  upon  which  the  patent 
issued  is  the  true  fate— St.  Louis  Co.  v.  Kemp,  104  U.  S.  636, 
11  M.  E.  673,  26  L.  Ed.  875,  2  Lind.  sees.  730,  783 ;  Last  Chance 
Co.  v.  Tyler  Co.,  61  F.  557,  9  C.  C.  A.  613.  Conclusive  pre- 
sumptions binding  on  all  parties  are  fixed  only  where  the 
party  to  be  bound  has  had  opportunity  to  have  his  day  in 
court.— Uinta  Co.  v.  Creede  Co.,  119  F.  164,  22  M.  R.  445. 


SIDE  VEINS  WITHIN  LOCATION  LINES  BEFORE 
MAY  10,  1872. 


Congressional  Bounty  or  Confirmation. 

R.  S.  Sec.  2328. — Applications  for  patents  for  mining  claims  tinder 
former  laws  now  pending  may  be  prosecuted  to  a  final  'decision  in  the 
General  Land  Office;  but  in  such  cases  where  adverse  rights  are  not 
affected  thereby,  patents  may  issue  in  pursuance  of  the  provisions  of  this 
chapter;  and  all  patents  for  mining-claims  upon  veins  or  lodes  heretofore 
issued  shall  convey  all  the  rights  and  privileges  conferred  by  this  chapter 
where  no  adverse  rights  existed  on  the  tenth  day  of  May,  eighteen  hundred 
and  seventy-two. — Sec.  9,  May  10,  187 S. 


SIDE  VEINS.  191 

Limited  to  Single  Vein. 

Under  the  original  Congressional  Act  of  1866,  no  vein 
except  the  first  claimed  was  covered  by  the  location  or  con- 
veyed by  the  patent. 

A  lode  claim,  therefore,  located  before  May  10,  1872, 
originally  covered  but  one  vein,  and  a  patent  issued  before 
that  date  covered  but  one  vein. — Blake  v.  Butte  Co.,  2  Utah 
54,  9  M.  R.  503 ;  Eclipse  Co.  v.  Spring,  59  Cal.  304 

Side  Veins  Donated  to  Old  Claims  Since  1872. 

By  the  A.  C.  of  1872,  which  gave  to  all  new  locations  and 
future  patents  the  benefit  of  everything  between  their  side 
lines,  it  was  added  that  all  old  locations  and  all  patents  under 
the  old  Act  should  have  the  same  benefit,  always  saving  any 
rights  which  had  intervened  before  the  passage  of  the  Act  of 
1872.— R.  S.  Sec.  2328. 

The  result  of  this  Act  is  that  a  location  properly  made 
before  May  10,  1872,  or  a  patent  issued  before  that  date, 
covers  all  side  and  other  interfering  veins  practically  to  the 
same  extent,  and  as  fully  as  locations  and  patents  under 
the  present  law;  always  saving  the  exception  in  the  section 
last  above  cited. — Pardee  v.  Murray,  4  Mont.  234,  15  M.  R. 
515,  2  P.  16 ;  Walrat h  v.  Champion  Co.,  63  F.  552. 


SIDE  VEINS  WITHIN  LOCATION  LINES  SINCE 
MAY  10,  1872. 


All  Veins  Apexing  Within  the  Lines. 

E.  S.  Sec.  2322. — The  locators  of  all  mining  locations  heretofore  made 
or  which  shall  hereafter  be  made,  *  *  *  where  no  adverse  claim 
exists  *  *  *  shall  have  the  exclusive  right  of  possession  and  enjoy- 
ment of  all  the  surface  included  within  the  lines  of  their  locations,  and 
of  all  veins,  lodes,  and  ledges  throughout  their  entire  depth,  the  top  or 
apex  of  which  lies  inside  of  such  surface-lines  extended  downward  ver- 
tically, *  •  *  —  Sec.  3,  May  10,  1872. 


192  DEPARTURE  FROM  SIDE  LINES. 

Surface  Lines  and  Apex  Define  the  Claim. 

Under  the  law,  as  it  has  existed  since  May  10,  1872,  it  is 
clear  that  all  veins  whose  tops  or  apices  are  within  the  lines 
of  the  claim  go  with  the  lode  which  gives  the  name  to  the 
claim;  and  the  surface  lines,  rather  than  identity  of  the 
veins,  are  made  to  control  the  extent  of  the  claim,  and  to  fix 
the  boundaries  between  adverse  parties. — Book  v.  Justice  Co., 
58  F.  106,  109,  17  M.  R.  617 ;  Doe  v.  Waterloo  Co.,  54  F.  935. 

The  possible  exceptions  to  this  general  assertion  are : 

1.  In  regard  to  what  are  commonly  called  cross  lodes;  p. 
185. 

2.  Where  the  outcrops  of  two  apparent  veins  appear  on  two 
separate  lines  at  the  surface,  but  in  their  downward  course 
such  veins  dip  into  each  other,  unite  and  form  a  single  vein; 
p.  188. 

3.  Instances  where  a  location  on  the  dip  may  have  cut  off 
the  right  of  a  later  appropriator  on  the  apex  to  follow  beyond 
his  side  lines  extended  vertically  downward ;  p.  211. 

4.  Locations    and    patents    before    May    10,  1872,  where 
adverse  rights  had  intervened  so  as  to  prevent  them  from 
taking  the  benefit  of  the  grant  of  side  veins  under  the  Act  of 
that  date;  p.  190. 

One  Set  of  End  Lines  for  Side  Veins. 
See  p.  215. 


DEPARTURE  OF  LODE  FROM  SIDE  LINES. 


Statement  of  the  Point. 

That  the  vein,  and  not  the  surface,  is  the  material  grant  of 
a  patent  to  a  mining  claim  has  never  been  disputed ;  nor  can 
it  be  denied  that  it  is  the  intention  both  of  the  purchaser  in 
buying,  and  the  government  in  selling,  to  deal  with  the  min- 
eral deposit,  the  surface  being,  usually,  comparatively  worth- 


DEPARTURE  FROM  SIDE  LINES.  193 

less  to  either.  And  if  the  case  lay  between  the  government 
and  the  purchaser  alone,  this  manifest  intention  might  pre- 
vent any  attempt  to  confine  the  party  to  an  erroneous  survey, 
giving  him  only  valueless  surface,  notwithstanding  the  mate- 
rial fact  that  it  is  the  patentee,  and  not  the  United  States, 
who  has  chosen  the  lines  which  produce  the  mischief. — Patter- 
son v.  Hitchcock,  3  Colo.  533,  5  M.  R.  542. 

But  it  is  the  rights  of  innocent  third  parties,  holding  claims 
beyond  the  located  or  patented  side  lines,  which  has  rendered 
this  question  so  important,  and  which  must  result  in  maintain- 
ing the  consistent  construction  already  given  to  the  Act  of 
Congress,  confining  every  claim  to  its  own  lines;  though  even 
if  it  were  a  matter  of  indifference,  this  holding  requires  no 
forced  construction  of  the  Acts  under  ordinary  rules  of  inter- 
pretation, and  had  been  the  constant  ruling  of  the  Appellate 
and  Circuit  Courts  before  its  confirmation  by  the  Federal 
Supreme  Court. 

Uniformity  of  Rulings  on  the  Point. 

This  question,  with  singular  unanimity,  has  been  set  at  rest 
by  the  decisions  of  many  courts.  It  is  now  beyond  contro- 
versy that  the  moment  the  apex  of  a  vein  leaves  either  side  line 
of  its  survey  the  locator  has  no  further  claim  thereto,  on  the 
strike,  beyond  such  point  of  departure. — Wolfley  v.  Lebanon 
Co.,  4  Colo.  112,  13  M.  R.  282 ;  Johnson  v.  Buell,  4  Colo.  557, 
9  M.  R.  502 ;  The  Flagstaff  case,  98  U.  S.  463,  25  L.  Ed.  253, 
9  M.  R.  607 ;  The  Golden  Fleece  case,  12  Nev.  312, 1  M.  R.  120. 

These  decisions  apply  equally  to  patented  and  unpatented 
claims,  and  have  been  universally  acceded  to  as  the  only  con- 
struction which  would  give  to  a  mining  claim  the  same  cer- 
tainty of  title  which  belongs  to  other  classes  of  real  estate 
which  are  free  from  the  complications  of  dips  and  departures. 

Facts  of  the  Golden  Fleece  Case. 

The  case  from  Nevada  is  singularly  illustrative  of  the  injus- 
tice which  would  result  from  a  contrary  holding. 


194  DEPARTURE  FROM  SIDE  LINES. 

The  Golden  Fleece  lode  was  surveyed  and  staked  in  1874, 
upon  a  vein  supposed  to  run  northwest  and  southeast.  The 
location  claiming  1,500  feet  ran  due  northwest  and  southeast, 
with  600  feet  width.  Afterwards  developments  by  its  work- 
ings and  on  the  Leonard  lode,  whose  discovery  was  about  800 
feet  to  the  southwest,  showed  that  the  vein  really  ran  at  right 
angles  to  its  originally  supposed  course.  The  Leonard  lode 
having  applied  for  patent,  the  Golden  Fleece  made  a  second 
survey  at  right  angles  to  the  first  which,  of  course,  embraced 
all  the  workings  and  croppings  on  the  Leonard;  and  then 
filed  its  adverse  claim,  based  on  such  relocation.  But  it  was 
held  that  the  Golden  Fleece  must  be  confined  to  its  original 
location  and  to  that  part  of  the  vein  within  the  lines  of  such 
original  location. 

Same  Holding  on  Old  50-Foot  Patents. 

The  patent  in  the  Wolfley  case  was  issued  under  the  Act  of 
1866,  so  that  the  decision  necessarily  applies  to  all  patents; 
because  the  argument  in  favor  of  following  the  vein,  under 
the  Act  of  1866,  was  much  stronger  than  in  the  case  of  pat- 
ents under  the  later  Act. — Lamed  v.  Jenkins,  113  F.  634,  51 
C.  C.  A.  344,  22  M.  R.  94. 

Not  Color  of  Title. 

In  a  later  suit,  upon  the  same  patent  construed  in  the 
Wolfley  case,  it  was  held  that  where  the  patent  owner  had 
followed  his  vein  outside  and  had  held  it  adversely  for  five 
years,  that  he  had  not  even  such  "color  of  title"  as  would 
operate  to  allow  him  the  benefit  of  the  statute  of  limitations. — 
Lebanon  Co.  v.  Rogers,  8  Colo.  34,  5  P.  661. 

Surface  Location  Beyond  Point  of  Vein  Departure. 

If  the  location  fail  to  cover  the  vein,  not  only  is  the  vein 
lost  after  it  leaves  the  side  lines,  but  that  portion  of  the  loca- 
tion which  extends  beyond  the  point  where  it  loses  the  vein 
has  been  decided  to  be  defeasible,  if  not  void,  having  no  dis- 


VEIN  WIDER  THAN  PATENT.  195 

covery  vein  upon  which  to  base  any  further  claim  to  either 
surface  or  other  veins  which  may  lie  within  its  lines. — Patter- 
son v.  Hitchcock,  3  Colo.  533,  5  M.  R.  542.  See  Plat,  p.  20. 

The  reason  of  this  decision  is  the  wording  of  the  Act  of  Con- 
gress (Sec.  2320)  restricting  a  lode  claim  to  a  certain  number 
of  feet  on  "each  side  of  the  middle  of  the  vein" — so  that  if 
the  vein  is  no  longer  found  within  the  lines  of  the  claim  the 
locator  has  no  basis  upon  which  to  hold  any  number  of  feet, 
beyond  the  point  of  departure.  Discarding  this  language 
of  the  statute,  the  case  of  Watervale  Co.  v.  Leach,  4  Ariz.  34, 
33  P.  4.18,  17  M.  R.  568,  holds  that  a  lode  location  need  pay 
no  attention  to  the  strike  and  the  only  consequence  of  failure 
to  plant  it  on  the  strike  is  to  lose  the  right  to  follow  on'  the  dip. 

The  decisions  on  this  point  do  not  apply  to  patented  claims ; 
Argonaut  Co.  v.  Turner,  23  Colo,  400,  58  Am.  St.  Rep.  245, 
48  P.  685,  18  M.  R.  556,  and^there  is  an  iriitial  presumption 
or  prima  fades  that  the  survey  covers  the  vein  until  the  con- 
trary  is  affirmatively  proved. — Armstrong  v.  Lower,  6  Colo. 
393,  15  M.  R.  631. 

The  reason  that  a  patented  claim  is  valid  to  its  full  extent 
for  what  it  does  cover  is  that  the  patent  is  of  a  "piece  of 
land,"  with  all  the  surface  its  lines  include;  the  patent  is  sup- 
posed to  have  been  based  on  a  location  made  on  a  vein,  with 
only  the  statutory  width  on  either  side,  and  if  in  fact  it  was 
otherwise,  or  if  the  vein  departed  before  it  reached  the  end 
line,  it  is  too  late  after  patent  for  any  adverse  claimant  to  set 
up  any  such  variations  to  defeat  the  operation  of  its  grant  to 
the  entire  surface  and  to  such  part  of  the  vein  as  it  doea 
cover.— Gleeson  v.  Martin  White  Co.,  13  Nev.  442,  9  M.  R.  429.  f 


VEIN  WIDER  THAN  PATENT. 

In  an  early  case  between  the  Colorado  Central  and  tha 
Equator  lode  in  the  U.  S.  Court  at  Denver,  each  claimed 
under  a  50-foot  patent,  the  vein  being  admittedly  100  feet 
wide.  The  Court  held  that  the  older  patent,  the  Equator, 


196  LODES,  VEINS  AND  LEDGES. 

could  hold  only  to  its  side  line  and  could  not  claim  extra- 
lateral  rights  on  its  dip  underneath  the  Colorado  Central  pat- 
ent. In  Bullion  Co.  v.  Eureka  Co.,  5  Utah  3,  11  P.  515,  the 
majority  of  the  Court  took  the  opposite  view. 

In  Empire  Co.  v.  Bunker  Hill  Co.,  114  F.  417,  52  C.  C.  A. 
219,  22  M.  R.  104,  the  Court  held  that  where  there  were  two 
patents,  one  covering  the  hanging  and  the  other  the  foot  wall, 
the  prior  location  had  extralateral  rights  and  took  the  whole 
vein  except,  of  course,  the  segment  within  the  vertical  lines 
of  the  later  location.  The  case  of  St.  Louis  Co.  v.  Montana  Co., 
104  F.  664,  56  L.  R.  A.  725,  44  C.  C.  A.  120,  21  M.  R.  57, 
which  it  cites,  is  to  the  same  effect.  These  precedents  are 
followed  in  an  able  opinion  by  VAN  DEVANTER,  C.  J.,  of  the 
Eighth  Circuit.  U.  8.  M.  Co.  v.  Lawson,  134  F.  769,  67 
C.  C.  A.  587;  affirmed,  L.  -v.  U.  8.  M.  Co.,  207  U.  S.  1,  52 
L.  Ed.  65,  28  Sup.  Ct.  Rep.  15. 

A  discovery  shaft  may  be  the  valid  basis  of  a  location 
although  it  fails,  being  up  to  the  edge  of  appropriated  ground, 
to  cover  the  whole  width  of  the  lode. — Larkin  v.  Upton,  144 
U.  S.  19,  36  L.  Ed.  330,  12  Sup.  Ct.  Rep.  614,  17  M.  R.  465; 
Upton  v.  Larkin,  1  Mont.  449,  15  M.  R.  404,  17  P.  728,  732. 


LODES,  VEINS  AND  LEDGES. 

Definition  of  the  Terms. 

The  word  "lode"  and  the  word  "vein"  are  used  indis- 
criminately in  the  Acts  of  Congress*  as  well  as  in  the  popular 
language,  to  signify  the  same  thing.  In  Bainbridge  on  Mines, 
the  text,  page  2,  defines  them  in  the  same  sentence:  "A  min- 
eral lode  or  vein  is  a  flattened  mass  of  metallic  or  earthy 
matter,  differing  materially  from  the  rocks  or  strata  in  which 
it  occurs."  A  note  to  the  same  suggests  the  use  of  the  word 
"vein"  as  incorrect,  when  applied  to  such  deposits  as  those  of 

•See  the  text  of  Sec.  2320,  p.  641;  See.  2322,  p.  642. 


LODES,  VEINS  AND  LEDGES.  197 

anthracite  coal.  But  the  note  is  not  justified,  for  the  word 
1 '  vein ' '  is  universally  used  to  include  coal  and  other  flat,  non- 
metallic  deposits,  while  the  word  "lode"  is  not  so  used.  This 
is  the  principal  distinction  in  the  use  of  the  words.  The  word 
"lode"  is  of  Cornish  origin  (Bullion  Co.  v.  Croesus  Co.,  2  Nev. 
168,  176,  90  Am.  Dec.  526,  5  M.  E.  254) ;  "vein"  is  Latin.  In 
Eureka  Co.  v.  Richmond  Co.,  Fed.  Gas.  No.  4548,  9  M.  R.  578, 
4  Sawy.  302,  where,  it  is  said,  every  known  definition  was 
presented  to  the  Court,  the  opinion  does  not  intimate  any 
difference  in  their  meaning,  but  says:  "Those  acts  give  no 
definition  of  the  term  'lode.'  They  use  it  always  in  connec- 
tion with  the  term  'vein.'  " 

The  word  "ledge"  came  into  use  in  California  after  the  dis- 
covery of  the  quartz  mines,  because  they  were  generally  found 
in  the  hills  above  the  gulches,  and  were  often  identified  with 
protruding  outcrop.  The  word  "reef,"  not  used  in  the  acts, 
is  the  popular  equivalent  for  lode  or  ledge  in  Australia  and 
South  Africa.  The  word  "range"  is  much  used  in  the  lead 
districts  of  the  Mississippi  valley. — Raisbeck  v.  Anthony,  73 
Wis.  572,  17  M.  R.  148,  41  N.  W.  72;  St.  Anthony  Co.  v. 
Shaffra,  138  Wis.  507, 120  N.  W.  238. 

Connection  With  Context  of  the  Statute. 

The  only  limitation  or  qualification  in  the  United  States 
Mining  Statutes  in  connection  with  the  words  "veins  or 
lodes"  or  "veins,  lodes  and  ledges,"  is  the  expression  "of 
quartz  or  other  rock  in  place." 

"In  Place." 

These  words  have  been  construed  material  in  cases  where 
the  vein  has  been  found  eroded  or  broken  up.  In  Stevens  v. 
Williams,  Fed.  Gas.  No.  13,414,  1  M.  R.  557,  where  both  the 
overlying  and  underlying  bodies  were  solid,  the  deposit  was 
held  to  be  a  lode  "in  place." 

In  Tabor  v.  Dexter,  Fed.  Cas.  No.  13,723,  9  M.  R.  614, 
where  the  location  was  on  ore  where  the  overlying  reck  had 


198  LODES,  VEINS  AND  LEDGES. 

been  eroded,  the  ore  body  remaining  covered  only  with  wash 
or  gravel,  it  was  held  that  the  lode  was  not  in  place.  A  like 
ruling  was  made  in  Leadville  Co.  v.  Fitzgerald,  Fed.  Gas.  No. 
8158,  4  M.  R.  380.  The  practical  point  in  these  decisions  ia 
that  where  a  location  is  claimed  to  be  upon  the  apex  of  a  lode, 
it  must  be  upon  such  apex  at  a  point  where  it  is  in  place 
between  the  original  enclosing  rocks  to  be  valid. 

Rock  in  place  is  contradistinguished  from  the  soil  or  debris. 
But  the  lode  is  in  place,  though  loose,  broken  or  disinte- 
grated.—Jones  v.  Prospect  Co.,  21  Nev.  339,  17  M.  R.  530, 
31  P.  642. 

Size  and  Richness  of  Deposit  Not  Material. 

In  North  Noonday  Co.  v.  Orient  Co.,  1  F.  522,  6  Sawy.  299, 
9  M.  R.  529,  537,  SAWYER,  J.,  says:  "A  vein  or  lode  author- 
ized to  be  located  is  a  seam  or  fissure  in  the  earth's  crust 
filled  with  quartz  or  some  other  kind  of  rock  in  place,  carrying 
gold,  silver  or  other  valuable  mineral  deposits  named  in  the 
statute.  It  may  be  very  thin  and  it  may  be  many  feet  thick, 
or  thin  in  places — almost,  or  quite  pinched  out,  in  miners' 
phrase — and  in  other  places  widening  out  into  extensive  bodies 
of  ore.  So,  also,  in  places,  it  may  be  quite,  or  nearly,  barren, 
and  at  other  places  immensely  rich.  It  is  only  necessary  to 
discover  a  genuine  mineral  vein  or  lode,  whether  small  or 
large,  rich  or  poor,  at  the  point  of  discovery  within  the  lines 
of  the  claim  located,  to  entitle  the  miner  to  make  a  valid  loca- 
tion including  the  vein  or  lode."  Its  validity  as  a  thing  that 
may  be  located  does  not  depend  on  what  it  runs. — Shreve  v. 
Copper  Bell  Co.,  11  Mont.  309,  28"  P.  315 ;  Stinch field  v.  Gillis, 
96  Cal.  33,  17  M.  R.  497,  30  P.  839.  Neither  walls  nor  pay 
ore  is  essential,  but  it  must  show  rock  distinguishable  from  the 
country.— Burke  v.  McDonald,  2  Ida.  646,  679,  17  M.  R.  325, 
33  P.  49.  The  fissure  must  be  defined. — Cons.  Wyoming  Co. 
v.  Champion  Ce.,  63  F.  540, 18  M.  R.  113.  On  the  facts  in  this 
case  it  is  too  late  to  call  one  vein  a  spur  and  the  other  a  main 
vein.— Carson  City  Co.  v.  North  Star  Co.,  73  F.  597,  601. 


LODES,  VEINS  AND  LEDGES.  199 

There  Must  Be  More  Than  a  Trace  of  Mineral. 

— U.  8.  v.  Rossi,  133  F.  380,  66  C.  C.  A.  442;  but  an  assay 
of  one  or  more  ounces  (of  silver)  will  suffice. — Stevens  v.  Gill, 
Fed.  Cas.  No.  13,398,  1  M.  R.  579. 

Whatever  a  Miner  Would  Follow  With  the  Expectation  of 

finding  ore,  or  similar  phrases,  have  been  adopted  as  the  prac- 
tical test  of  what  is  to  be  considered  a  lode  under  the  Act  of 
Congress. — Eureka  Co.  v.  Richmond  Co.,  Fed.  Cas.  No.  4548, 
9  M.  R.  578,  4  Sawy.  302 ;  Harrington  v.  Chambers,  3  Utah  94, 
1  P.  362.  Any  body  or  belt  of  mineralized  rock  is  a  lode. — • 
Book  v.  Justice  Co.,  58  F.  106,  17  M.  R.  617 ;  Shoshone  Co.  v. 
Butter,  87  F.  801,  31  C.  C.  A.  223,  19  M.  R.  356. 

Different  Degrees  of  Proof. 

In  Fitzgerald  v.  Clark,  17  Mont.  100,  52  Am.  St.  Rep.  665, 
30  L.  R.  A.  803,  42  P.  273,  283,  the  distinction  is  made  between 
the  proof  sufficient  upon  which  to  base  a  location  and  the  proof 
required  where  the  continuity  of  the  vein  is  in  question, 
holding  to  greater  strictness  in  the  latter  case.  The  degree  of 
proof  required,  and  the  use  of  the  words  "considerable  dis- 
tance" or  "considerable  interval"  in  the  continuity,  in  the 
instructions,  is  discussed  in  Butte  Co.  v.  Societe,  23  Mont.  177, 
75  Am.  St.  Rep.  505,  58  P.  111. 

What  might  be  sufficient  proof  on  which  to  maintain  a  min- 
ing location  may  not  be  sufficient  to  maintain  an  assertion  of 
extralateral  rights. — Gr.  Cen.  Co.  v.  Mammoth  Co.,  29  Utah 
490,  83  P.  648;  Mammoth  Co.  v.  G.  C.  Co.,  213  U.  S.  72,  53 
L.  Ed.  702,  29  Sup.  Ct.  Rep.  413. 

Whether  a  crevice  is  of  such  value  as  to  justify  a  prudent 
miner  to  follow  is  a  proper  subject  for  expert  testimony. — 
Wilson  v.  Harnette,  32  Colo.  172,  75  P.  395. 

In  Land  Office   Controversies  the   Value   of  the  Mineral 

deposit  is  a  matter  immaterial  to  the  government  save  in  con- 
tests between  mineral  and  non-mineral  claimants. — 21  L.  D. 
440. 


200  LODES,  VEINS  AND  LEDGES. 

In  the  Rough  Eider  case  the  department  held  that  the 
recognized  custom  of  the  district  in  treating  a  certain  forma- 
tion as  a  lode  should  be  recognized  on  the  question  of  what 
is  valid  discovery. — 42  L.  D.  584. 

Faults  and  Pinches  Do  Not  Affect  the  Legal  Continuity  of 

the  vein.— Cheesman  v.  Shreeve,  40  F.  793,  17  M.  R.  260. 
The  mineral  beyond  the  fault  is  a  part  of  the  same  lode  or 
range.— Eaisbeck  v.  Anthony,  73  Wis.  572,  41  N.  W.  72,  17 
M.  E.  148. 

But  when  a  fault  is  so  great  that  the  lines  of  the  claim  do 
not  catch  it  beyond  the  break  it  ends  the  rights  of  the  pat- 
entee to  the  vein. — Stewart  Co.  v.  Ontario  Co.,  23  Ida.  724, 
132  P.  787.  In  Watt  v.  U.  S.  M.  Co.,  232  F.  613,  the  effect  of 
a  faulting  fissure  is  considered. 

Show  of  Mineral  by  Seepage. 

While  the  richness  or  poverty  of  the  vein  or  of  the  seam  or 
stratum  of  rock  followed  as  a  vein,  in  determining  the  ques- 
tion of  such  rock  being  vein  matter,  is  not  of  controlling  im- 
portance, yet,  on  practical  acquaintance  with  the  subject,  it 
will  be  seen  that  such  point  of  relative  value  can  not  be  wholly 
ignored. 

Where  the  opinions  say  that  it  may  be  rich  or  poor,  they 
refer  to  the  well-known  fact  that  true  veins,  for  long  distances, 
are  often  quite  barren.  But  it  does  not  follow  that  every 
seam  of  rock  which  will  assay  is  necessarily  any  vein  at  all. 
For  there  do  exist  seams  which  carry  a  little  mineral  and  yet 
are  not  veins  within  tile  geological  or  legal  definition.  The 
mineralization  in  such  cases,  in  some  of  them  at  least,  is  caused 
by  infiltration  of  ore  from  a  true  vein  or  deposit  along  some 
plane  of  cleavage  or  along  the  plane  between  two  formations, 
or  through  mere  mechanical  cracks  in  the  rock,  and  all  their 
mineral  is  only  precipitated  or  crystallized  seepage  from  the 
lode  or  deposit  above.  Such  bastard  veins  have  just  enough 
resemblance  to  true  veins  to  be  used  as  a  pretext  of  title 


LODES,  VEINS  AND  LEDGES.  201 

against  neighboring  locations  on  the  legitimate  vein.  They  are 
generally  lacking  in  walls,  continuity  and  in  the  normal  uni- 
formity of  a  true  vein,  and  yet  may  have  slips  which  are  prac- 
tically indistinguishable  from  walls,  and  have  some  discolored 
matter  and  particles  of  ore,  just  enough  to  be  dangerously 
similar  to  w?hat  is  of  value  only  as  it  is  unlike  such  things. — 
Golden  v.  Murphy,  27  Nev.  379,  75  P.  625,  76  P.  29. 

The  question  of  vein  or  no  vein  in  law,  is,  in  such  cases,  a 
fact  to  be  determined  by  the  jury  under  the  instructions  of 
the  Court.— Iron-Silver  Co.  v.  Mike  &  Starr  Co.,  143  U.  S. 
394,  36  L.  Ed.  201,  12  Sup.  Ct.  Rep.  543,  17  M.  E.  436;  Blue 
Bird  Co.  v.  Largey,  49  F.  289. 

Mineral  Bearing  Zone. 

A  broad  formation  impregnated  everywhere  with  mineral, 
but  traversed  by  true  fissures  within  itself,  can  not  be  con- 
sidered as  the  lode ;  the  fissures  within  such  zone  are  the  lodes 
and  the  zone  is  the  country. — Mt.  Diablo  Co.  v.  Callison,  5 
Sawy.  439,  9  M.  E.  616,  Fed.  Gas.  No.  9886.  Ore  distributed 
generally,  though  unequally,  throughout  the  entire  mass  of 
limestone  of  the  mountain  does  not  constitute  a  continuous 
lode  such  as  may  be  followed  beyond  the  lines  of  its  location. — 
Hyman  v.  Wheeler,  29  F.  347,  15  M.  E.  519.  A  belt  of  por- 
phyry containing  mineralized  seams  is  a  lode. — Book  v.  Jus- 
tice Co.,  58  F.  106,  17  M.  E.  617 ;  Shoshone  Co.  v.  Butter,  87 
F.  801,  31  C.  C.  A.  223,  19  M.  E.  356.  When  a  larger  deposit 
is  separated  into  two  distinct  seams  with  separate  walls,  each 
seam  is  a  separate  lode. — Doe  v.  Waterloo  Co.,  54  F.  935; 
Hayes  v.  Lavagnino,  17  Utah  185,  53  P.  1029,  19  M.  E.  485. 

Where  the  mineralization  of  the  alleged  lode  is  not  apprecia- 
bly greater  than  the  surrounding  rock  it  does  not  constitute 
a  vein.  The  absence  of  walls  and  want  of  continuity  com- 
mented on. — Grand  Central  M.  Co.  v.  Mammoth  M.  Co.,  29 
Utah  490,  83  P.  648. 

In  determining  what  is  such  a  lode  as  has  extralateral  rights 
the  geological  conditions  of  the  district  are  to  be  considered. — 
Golden  v.  Murphy,  31  Nev.  395,  103  P.  394,  105  P.  99. 


202  LODES,  VEINS  AND  LEDGES. 

A  broad  zone  of  mineral  bearing  rock  with  streaks  of  min- 
eral and  barren  spaces  was  held  to  be  a  lode. — United  States 
M.  Co.  v.  Lawson,  134  F.  769,  67  C.  C.  A.  587.  That  is  to  say, 
the  broad  zone  and  not  the  mineral  streaks  was  the  vein.  In 
a  later  controversy  on  the  same  formation  the  like  ruling  was 
made.— Wall  v.  U.  S.  M.  Co.,  232  F.  614. 

Ore  in  Pockets,  Vugs  or  Other  Irregular  and  Disconnected 

occurrences  without  vein  matter  between  does  not  make  a  lode. 
—Cheesman  v.  Shreeve,  40  F.  787,  17  M.  R.  260.  Nor  ore 
bodies  formed  outside  the  fissure. — Tombstone  Co.  v.  Way  Up 
Co.,  1  Ariz.  426. 

Where  the  Continuity  of  the  Ore  Body  Is  Broken  by  the 

contact  becoming  barren  for  a  considerable  distance,  the  legal 
extent  of  the  vein  ceases. — Stevens  v.  Williams,  1  M.  R.  557, 
Fed.  Gas.  No.  13,414;  Leadville  Co.  v.  Fitzgerald,  4  M.  K,  380, 
Fed.  Gas.  No.  8158.  A  vein  need  not  be  a  straight  line  nor 
uniform  in  dip,  thickness  or  richness  of  ore.  The  enclosing 
cleft  or  fissure  may  narrow  or  even  close  for  a  few  feet  and 
be  found  further  on.  Its  continuity  may  be  proved  by  fol- 
lowing either  the  ore  or  the  rock  which  carries  the  ore.  Slight 
proof  of  ore  is  sufficient  where  the  enclosing  boundaries  are  dis- 
tinct; there  need  be  no  proof  of  such  boundaries  if  the  ore 
itself  can  be  followed.  But  if  the  vein  disappear  so  far  or  so 
completely  that  it  can  not  be  recognized  when  it  is  again  found 
or  alleged  to  be  found,  there  is  no  sufficient  proof  of  continuity. 
—Iron-Silver  M.  Co.  v.  Cheesman,  116  U.  S.  530,  29  L.  Ed.  712, 
6  Sup.  Ct.  Rep.  481;  followed  substantially  in  Hyman  v. 
Wheeler,  supra,  and  in  the  Cheesman  case,  40  F.  787,  17  M.  R. 
260.  "Where  the  lode  has  no  definite  walls  the  ore  bodies  are  the 
guides  to  follow. — Bunker  Hill  Co.  v.  Empire  Co.,  134  F.  268. 

All  Deposits  "in  Place"  Are  Lodes. 

The  uniform  ruling  has  been  that  all  forms  of  metallic  min- 
eral or  mineral  gangue  in  place,  whether  fissure  or  contact 
veins,  or  impregnations,  or  other  irregular  deposits,  should  be 


APEX.  203 

construed  to  come  within  the  expression  "veins  or  lodes"  used 
in  the  Act  of  Congress,  and  as  such  to  be  subject  to  location 
and  patent  under  the  Act. — Hayes  v.  Lavagnino,  17  Utah  185, 
53  P.  1029,  19  M.  R.  485.  There  has  been  in  fact  a  concession 
that  such  should  be  the  holding  rather  than  a  contention  to 
the  contrary.  The  substantial  and  contested  point  has  been 
whether  a  location  or  patent  on  certain  forms  of  deposit  was 
entitled  by  virtue  of  including  the  apex  or  so-called  apex  of 
the  vein  or  deposit,  to  follow  the  vein  or  deposit  beyond  the 
side  lines  underneath  the  adjoining  ground  or  claims  of  other 
parties.  This  point  will  be  considered  under  the  next  heading, 
APEX. 

Evidence  of  what  has  been  followed  up  and  located  on  in 
the  same  mining  locality  is  admissible  as  to  what  is  sufficient 
lode  discovery. — Ambergris  M.  Co.  v.  Day,  12  Ida.  108,  85 
P.  109. 

Lode  Located  as  Placer. 

A  bed  of  rock  phosphate  in  place  is  a  lode ;  the  location  of 
the  same  as  a  placer  is  void  and  upon  adverse  by  the  lode 
against  the  placer  the  lode  claimant  recovered  judgment. — 
San  Francisco  Co.  v.  Duffield,  201  F.  830,  120  C.  C.  A.  160. 
The  case  discusses  the  distinctions  between  lodes  and  placers. 


APEX. 

The  Grant  of  the  Apex  Right. 

R.  S.  Sec.  2322. — The  locators  of  all  mining  locations  •  •  •  8hall 
have  the  exclusive  right  of  possession  and  enjoyment  of  all  the  surface 
included  within  the  lines  of  their  locations,  and  of  all  veins,  lodes,  and 
ledges  throughout  their  entire  depth,  the  top  or  apex  of  which  lies  inside 
of  such  surface-lines  extended  downward  vertically,  although  such  veins, 
lodes,  or  ledges  may  so  far  depart  from  a  perpendicular  in  their  course 
downward  as  to  extend  outside  the  vertical  side-lines  of  such  surface 
locations. 


204  APEX. 

Limitation  to  Planes  of  Projected  End  Lines. 

But  their  right  of  possession  to  such  outside  parts  of  such  veins  or 
ledges  shall  be  confined  to  such  portions  thereof  as  lie  between  vertical 
planes  drawn  downward  as  above  described,  through  the  end-lines  of  their 
locations,  so  continued  in  their  own  direction  that  such  planes  will  inter- 
sect such  exterior  parts  of  such  veins  or  ledges. — Sec.  3,  May  10,  1872. 

Apex  rights  are  conveyed  by  patent  as  of  the  date  of  dis- 
covery so  far  as  third  parties  are  concerned,  although  the 
original  possessory  claim  thereto  was  defective.-  -Clark  Mon- 
tana Co.  v.  ButUCo.,  233  F.  548. 

The  Mining  Act  of  1866  which  was  the  first  provision  for 
advancing  possessory  claims  to  patent  provided  that  the  appli- 
cant should  be  granted 

such  mine,  together  with  the  right  to  follow  such  vein  or  lode  with  its 
dips,  angles  and  variations,  to  any  depth,  although  it  may  enter  the  land 
adjoining,  which  land  adjoining  shall  be  sold  subject  to  this  condition. 

The  Act  of  1872  made  a  material  change  by  providing  that 
the  end  lines  of  every  lode  claim  shall  be  parallel  and  that 
these  end  lines  protracted  should  become  bounding  planes 
between  which  the  proprietor  of  the  apex  should  have  the 
right  to  follow  his  vein. 

The  theory  of  the  Act  was  that  a  survey  would  enclose  a 
vein  along  its  center  line  from  end  to  end  and  that  the  end 
lines  would  be  at  right  angles  to  the  strike  of  the  vein.  But 
there  are  many  locations  where  the  miner  is  not  so  fortunate 
as  to  place  his  stakes  so  as  to  comply  with  such  theory.  The 
course  of  the  lode  when  located  or  when  surveyed  for  patent 
is  generally  a  matter  more  or  less  of  conjecture  and  even  if 
known,  the  vicinity  of  prior  claims  may  interfere  with  the  sur- 
vey desired ;  and,  there  being  no  requirement  that  the  side  and 
end  lines  must  be  at  right  angles,  it  is  found  in  practice  that 
many  difficult  points  arise  upon  most  of  which  by  this  time 
there  is  a  satisfactory  judicial  conclusion. 

The  common  law  grant  of  lands  conveys  the  surface  and 
whatever  minerals  underlie  the  surface  within  lines  drawn 
perpendicularly  downward  toward  the  center  of  the  earth. 


APEX.  205 

The  apex  clause  in  the  Act  modifies  the  common  law  by 
enlargement  to  the  extent  that  the  claimant  owns  and  may 
follow  any  lode  whose  apex  he  covers,  beyond  his  side  lines 
under  land  adjoining.  On  the  other  hand,  he  is  not  the  owner 
of  lodes  found  within  his  lines  extended  downward  vertically 
where  such  lodes  have  their  apices  outside  of  his  surveyed 
lines.— Roxanna  Co.  v.  Cone,  100  F.  168,  20  M.  R.  323. 

Besides  the  right  to  follow  his  own  vein  on  the  dip,  he  is, 
under  the  common  law  grant  of  the  patent,  owner  of  the  soil 
and  rock  within  his  lines  carried  vertically  downward. 

This  common  law  grant  gives  him  the  ownership  of  any 
deposit  of  mineral  belonging  to  a  class  which  has  no  apex  and 
also  of  any  lode  which,  though  it  have  an  apex,  such  apex  is 
not  located  upon  or  is  surveyed  in  such  form  as  to  give  no 
extralateral  rights  to  the  proprietor  of  such  exterior  location. 

The  above  general  proposition  must  be  understood  with 
reference  to  certain  limitations  and  conditions  as  follows : 

The  Lode  Must  Have  an  Apex. 

The  outcrop  or  edge  of  a  vein  or  deposit  is  not  necessarily 
its  apex.  The  typical  or  true  fissure  vein  is  a  narrow  zone 
of  ore-bearing  rock  descending  indefinitely  in  depth.  It  is 
essentially  a  perpendicular  formation,  though  always,  or 
nearly  always,  inclining  some  degrees  from  true ;  this  inclina- 
tion is  called  its  dip.  The  bounding  planes  of  such  vein  are 
called  its  walls.  The  outcrop  or  nearest  approach  of  such  a 
vein  to  the  surface  is,  and  always  has  been,  properly  styled 
its  apex.  Such  were  the  veins  generally  known  and  worked  on 
the  Pacific  Slope  at  the  time  of  the  passage  of  the  Mining 
Acts. 

To  give  such  veins  the  right  to  their  dip  was  essential  to 
their  full  use  and  enjoyment. 

Other  classes  of  veins  are  essentially  horizontal  in  their 
formation.  If  found  to  approach  the  perpendicular  such  fact 
is  accidental,  not  incidental — occasional  and  rare,  not  usual 
or  normal.  They  may  be,  like  coal,  a  layer  of  rock  itself  con- 
stituting a  separate  geological  stratum ;  or  they  may  be  a  fill- 


206  APEX. 

ing  between  the  planes  of  contact  of  two  dissimilar  forma- 
tions; or  they  may  be  impregnations  diffused  irregularly 
through  a  broad  zone.  Such  deposits  are  called  beds  or  even 
fields,  terms  obviously  inapplicable  to  perpendicular  deposits. 
Their  upper  boundary  rock  is  commonly  and  properly 
called  the  roof — rarely  the  wall — and  while  they  may  have  an 
outcrop,  such  outcrop  was  never  known  among  miners  as  an 
1 '  apex ' '  until  the  use  of  such  term  in  the  Mining  Acts  induced 
the  attempt  to  abuse  the  term  by  imposing  it  upon  the  out- 
crop of  horizontal  formations. ' 

The  term  itself  means  the  top  or  highest  point,  and  has  no 
significance  when  applied  to  horizontal  deposits. 

A  location  on  the  top  of  an  anticlinal  fold  was  allowed  dip 
rights  through  both  side  lines  in  Jim  Butler  Co.  v.  West  End 
Co.,  (Nev.)  158  P.  876. 

Blanket  Veins. 

In  the  case  of  Duggan  v.  Davey,  4  Dak.  110,  26  N.  W.  901, 
17  M.  R.  59,  the  top  of  the  lode  was  exposed  by  erosion  and 
the  erosion  extended  downward  where  the  side  or  edge  of  the 
vein  was  exposed  as  it  extended  into  the  earth  on  its  dip  of 
about  8  degrees.  The  Sitting  Bull  Survey  was  laid  upon  this 
lateral  outcrop  and  sought  to  enjoin  the  claim  below  it.  The 
Court  found  as  a  matter  of  fact  that  the  outcrop  of  the  vein 
on  which  the  Sitting  Bull  was  patented  was  the  exposure  of 
its  lateral  edge  and  not  of  its  top  or  true  apex  and  that  it  was 
therefore  not  entitled  to  extralateral  rights. 

Stewart  Co.  v.  Ontario  Co.,  23  Ida.  724,  132  P.  787,  is  a 
very  similar  case.  It  also  decides  in  terms  the  point  stated  in 
the  next  paragraph — that  a  blanket  vein  has  no  extralateral 
rights. 

The  case  of  Gilpin  v.  Sierra  Nevada  Co.,  2  Ida.  696,  23  P. 
547, 17  M.  R.  310,  intimates  that  blanket  veins  can  not  claim  to 
have  an  apex  under  the  Mining  Acts.  The  inclines  on  the 
deposit  in  that  instance  as  worked  ran  from  the  surface  up, 
instead  of  down. 

In  the  Leadville  and  Aspen  cases  arising  upon  veins  of  the 


APEX.  207 

character  last  above  described,  in  the  United  States  Circuit 
Court  at  Denver,  any  such  distinction  as  above  made  has  not 
been  recognized.  But  the  strict  ruling  on  other  points,  that 
there  should  have  been  no  prior  location  on  the  dip ;  that  the 
apex  location  must  be  made  on  a  vein  in  place,  and  the  neces- 
sity of  having  the  apex  parallel  to  the  side,  and  not  parallel 
to  the  end  lines,  which  is  a  practical  impossibility  when  the 
real  deposit  is  a  deeply  imbedded  field,  bed  or  basin,  with  a 
more  or  less  circular  rim,  have  circumscribed  and  practically 
defeated  most  attempts  to  follow  such  veins  on  their  dip. 

The  strength  of  our  contention  is  increased  by  an  attempt 
to  apply  the  apex  law  to  such  deposits  as  the  lead  and  zinc 
beds  at  Joplin,  Missouri.  There  the  country  for  miles  is 
underlaid  by  a  stratum  carrying  zinc  and  lead  ore.  The 
miner  starts  a  shaft  in  the  open  prairie,  without  any  indica- 
tions whatever  of  mineral,  and  at  a  certain  depth  confidently 
expects  to  pierce  this  ore-bearing  stratum,  which  is  substan- 
tially a  flat  underlying  deposit,  the  outcrop  of  which  may  be 
miles  distant — if  it  have  any  outcrop  at  all  it  is  only  when 
some  bluff  or  ravine  would  expose  the  edge  of  the  bed  at  the 
surface.  As  to  such  deposits  it  is  obvious  that  there  is  no 
such  thing  as  locating  a  claim  so  many  feet  on  each  side  of  the 
center  of  the  vein,  for,  as  the  Department  holds:  "The  apex 
of  the  lode  is  co-extensive  with  the  side  Itoes."— 29  L.  D.  689. 
In  Iron  8.  Co.  v.  M.  &  S.  Co.,  143  U.  S.  394,  36  L.  Ed.  201, 
12  Sup.  Ct.  Rep.  543,  17  M.  R.  436,  the  opinion  refers  to  this 
distinction  and  recognizes  the  validity  of  such  blanket  lode 
locations,  treating  this  incident  of  no  apex  proper  as  an  item 
of  minor  importance.  Blanket  veins  must  be  located  as  lode 
claims  and  not  as  placers. — Iron  S.  Co.  v.  Campbell,  17  Colo. 
274,  29  P.  513. 

The  End  Lines  Must  Be  Parallel. 

When  we  claim  the  right  to  follow  a  vein  on  its  dip  as  it 
leaves  its  side  lines  and  plunges  into  the  earth  it  is  obvious 
that  we  are  at  once  dealing  with  a  third  dimension  rarely 
referred  to  in  surface  grants.  It  is  also  obvious  that  unless 


208  APEX. 

this  third  dimension  is  guided  by  parallel  planes  tho  H.iim 
will,  if  the  end  lines  diverge,  extend  indefinitely  as  it  goes 
down.  If  they  converge,  it  would,  like  a  wedge,  diminish  to 
a  line.  The  statute  therefore  in  terms  requires  end  linos  to 
be  parallel  and  that  requirement  has  no  reasonable  meaning 
except  as  taken  in  connection  with  the  right  to  follow  the 
lode  on  the  dip.  If,  therefore,  the  locator  fail  or  neglect  to 
make  his  end  lines  parallel  he  is  in  disobedience  of  the  terms 
of  the  act,  by  either  fault  or  misfortune,  and  has  no  right  to 
this  statutory  donation.  It  was  so  ruled  in  Montana  Co.  v. 
Clark,  42  F.  626,  16  M.  R.  80,  where  the  claim  was  surveyed 
as  a  triangle  which  could  not  geometrically  have  two  parallel 
lines.  The  same  in  the  Elgin  case,  15  M.  R.  641,  which  had  a 
survey  in  the  shape  of  a  horseshoe.  In  both  these  cases  the 
reason  for  the  parallelism  of  end  lines  is  fully  stated. 

The  Eureka  case,  4  Sawy.  302,  9  M.  R.  578,  Fed.  Cas.  No. 
4548,  has  been  cited  (Horswell  v.  Ruiz,  67  Cal.  Ill,  7  P.  197, 
15  M.  R.  489)  as  ruling  that  the  requirement  of  end  lines  is 
directory  merely  and  that  no  consequences  attach  to  its 
neglect,  but  the  further  details  of  the  opinion  (on  page  596) 
must  qualify  the  words  to  that  effect  used  on  page  593.  We 
can  see  no  reason  why  a  survey  without  parallel  end  lines 
should  be  void  for  the  ground  within  its  lines,  nor  can  we 
conceive  that  it  should  be  allowed  extralateral  rights  if  it  do 
not  have  end  lines  substantially  parallel.  But  the  case  of 
Doe  v.  Sanger,  83  Cal.  203,  23  P.  365,  decides  in  terms  that 
the  end  lines  need  not  be  parallel  and  that  they  do  not  affect 
the  right  to  follow  the  lode  on  the  dip  for  the  weakest  of  all 
reasons  in  statutory  construction,  to- wit :  because  the  require- 
ment of  parallelism  and  the  grant  of  the  dip  are  contained  in 
two  different  sections  of  the  Mining  Act. 

It  is  evident  from  the  language  used  and  the  plats  in  Wai- 
rath  v.  Champion  Co.,  171  U.  S.  294,  43  L.  Ed.  170,  18  Sup. 
Ct.  Rep.  909,  19  M.  R.  410,  in  the  Stone  Lode  case,  118  U.  S. 
]96,  30  L.  Ed.  98,  6  Sup.  Ct.  Rep.  1177,  15  M.  R.  641,  and 
other  decisions  that  practically  a  lode  may  be  surveyed  in  any 
shape  which  a  locator  chooses  to  give  to  his  lines. 


APEX.  209 

That  there  is  no  requirement  that  every  claim  be  substan- 
tially a  parallelogram  or  must  have  two  end  lines  and  two 
side  lines.  But  no  such  irregular  survey  has  ever  been 
allowed  extralateral  rights  except  in  the  case  of  Doe  v.  San- 
ger,  supra.  Such  a  location  is  good  for  its  surface  ground  and 
for  such  parts  of  veins  (not  held  by  location  on  the  apex  out- 
side) as  may  be  found  within  its  vertical  planes. — Grown 
Point  Co.  v.  Buck,  97  F.  462,  38  C.  C.  A.  278. 

Apex  rights  were  claimed  for  the  clear  ground  in  a  triangle 
with  end  lines  projected  over  older  claims,  but  the  Court  did 
not  decide  it  in  terms  because  it  was  not  certain  whether  such 
end  lines  were  parallel. — McElligott  v.  Krogh,  151  Cal.  126, 
90  P.  823. 

Where  on  going  to  patent  certain  prior  surveys  cut  into  one 
end  line  of  a  claim  so  as  to  give  it  a  zigzag  shape  if  the  several 
courses  of  such  line  were  followed  as  they  meandered,  such 
exclusions  are  to  be  disregarded  and  the  original  straight  end 
line  is  the  true  end  line. — Big  Hatchet  Co.  v.  Colvin,  75  P.  605, 
19  Colo.  App.  405;  Jim  Butler  Co.  v.  West  End  Co.,  (Nev.) 
158  P.  876. 

Locations  under  the  Act  of  1872  to  claim  extralateral  rights 
must  have  parallel  end  lines. — Da{/gett  v.  Yreka  M.  Co.,  149 
Cal.  357,  86  P.  974.  The  Department  has  held  that  end  lines 
must  have  substantial  existence,  and  that  two-tenths  of  a  foot 
in  length  is  not  an  end  line  within  the  meaning  of  the  statute. 
—34  L.  D.  470,  35  Id.  22. 

End  Lines  Under  Act  of  1866. 

It  has  been  constantly  held  that  patents  perfecting  loca- 
tions older  than  the  Act  of  May  10,  1872,  may  have  extra- 
lateral  rights  without  the  necessity  of  parallel  end  lines,  and 
where  the  end  lines  converge  they  may  be  protracted. — Car- 
son City  Co.  v.  North  Star  Co.,  73  F.  597 ;  Central  Co.  v.  E. 
Central  Co.,  146  Cal.  147,  79  P.  834.  (Affd.  E.  C.  Co.  v.  C.  E. 
Co.,  204  U.  S.  266,  51  L.  Ed.  476,  27  Sup.  Ct.  Rep.  258.)  In 
Argonaut  Co.  v.  Kennedy  Co.,  131  Cal.  15,  82  Am.  St.  Rep. 
317,  21  M.  R.  163,  63  P.  148,  where  the  end  lines  diverged 
the  dip  right  was  given  at  right  angles  to  the  strike  of  the 


210  APEX. 

vein.  If  the  Argonaut  case  is  correct  and  if  parallelism  of 
end  lines  is  not  required,  then  we  see  no  reason  for  drawing 
the  distinction  between  end  lines  converging  or  diverging  nor 
why  the  former  should  not  enjoy  equal  dip  rights  with  the 
latter  in  these  old  locations. 

The  Lode  Crossing  Both  Side  Lines. 

'  In  the  case  of  Flagstaff  Co.  v.  Target,  98  U.  S.  463,  9  M.  R. 
607,  25  L.  Ed.  253,  the  Supreme  Court  of  the  United  States 
at  an  early  date  held  where  the  lode  crossed  from  side  line 
to  side  line  at  practically  a  right  angle  to  its  survey,  that  in 
such  case  the  side  lines  became  end  lines,  that  is  to  say :  They 
passed  down  through  the  lode  vertically  and  cut  off  all  extra- 
lateral  rights.  This  decision  has  been  uniformly  followed  in 
all  cases  where  the  lode  has  been  found  to  leave  its  located  or 
patented  area  through  both  side  lines. — King  v.  Amy-Silver- 
smith Co.,  152  U.  S/222,  38  L.  Ed.  419,  14  Sup.  Ct.  Rep.  510, 
18  M.  R.  76 ;  Argentine  Co.  v.  Terrible  Co.,  122  U.  S.  478,  30 
L.  Ed.  1140,  7  Sup.  Ct.  Rep.  1356,  17  M.  R.  109 ;  Parrot  Co. 
v.  Eeinze,  25  Mont.  139,  87  Am.  St.  Rep.  386,  53  L.  R.  A.  491, 
21  M.  R.  232,  64  P.  326;  8.  Nev.  Co.  v.  Holmes  Co.,  27  Nev. 
107,  103  Am.  St.  Rep.  759,  73  P.  759. 

The  Lode  Leaving  One  Side  Line. 

After  much  greater  contention  than  in  the  instance  of  the 
lode  crossing  from  side  line  to  side  line,  it  has  now  been 
repeatedly  held  that  where  the  lode  leaves  the  claim  through 
one  end  line  and  one  side  line  it  preserves  its  extralateral 
rights,  to-wit :  the  right  to  follow  the  vein  on  its  dip  from  the 
end  line  to  the  point  on  the  side  line  where  it  leaves  the  claim. 
Such  end  line  is  protracted  vertically  downward  and  pro- 
duced on  its  course  to  form  a  bounding  plane  and  the  other 
bounding  plane  is  found  by  protracting  and  producing  an- 
other line  parallel  to  the  end  line  plane  across  the  claim  at 
the  point  where  the  vein  goes  out.  Last  Chance-Tyler  case, 
54  F.  284,  61  F.  557,  9  C.  C.  A.  613;  Cons.  Wyoming  Co.  v. 
Cliampion  Co.,  63  F.  540,  18  M.  R.  113;  Del  Mon.te  and  Last 


APEX.  211 

Chance  case,  66  F.  212,  18  M.  R.  188,  171  U.  S.  56,  43  L.  Ed. 
72, 18  Sup.  Ct.  Rep.  895, 19  M.  R.  370 ;  Clark  v.  Fitzgerald,  171 
U.  S.  92,  43  L.  Ed.  87, 18  Sup.  Ct.  Rep.  941 ;  Carson  City  Co.  v. 
Xorth  Star  Co.,  73  P.  597. 

The  vein  might  leave  both  side  lines  within  a  few  feet  of 
either  end  line,  in  which  case  it  might  be  said  that  the  survey 
practically  covered  the  apex,  but  we  apprehend  that  such  a 
location  would  have  no  more  rights  than  if  it  crossed  at  right 
angles.  It  is  the  going  out  at  the  end  lines  that  gives  the 
extralateral  right. 

Divergence  from  Same  Side  Line  Twice. 

In  Catron  v.  Old,  23  Colo.  433,  58  Am.  St.  Rep.  256,  48  P. 
687, 18  M.  R.  569,  the  Fulton  survey  had  an  angle  in  the  center 
making  it  a  V-shaped  claim ;  crossing  the  diverging  halves  the 
lode  left  the  location  twice  through  the  south  side  line,  the 
diagram  of  the  conflict  being  as  follows : 


The  Supreme  Court  of  Colorado  held  that  the  Fulton  Lode 
had  no  right  to  follow  the  vein  upon  the  dip  into  any  ground 
beyond  its  side  line  carried  down  vertically,  and  the  correct- 
ness of  such  ruling  could  not  be  seriously  disputed  under  the 
authority  of  the  Amy-Silversmith  case. 

Discovery  on  the  Dip. 

In  Van  Zandt  v.  Argentine  Co.,  8  F.  725,  2  McCr.  159,  4 
M.  R.  441,  it  was  held  that  a  prior  discovery  on  the  dip  would 
hold  against  a  junior  discovery  on  the  apex  above.  It  is  also 
obvious  that  all  tunnel  discoveries  must  necessarily  be  made 


212  APEX. 

on  the  dip  and  their  validity  has  never  been  doubted. — Jones 
v.  Prospect  Co.,  21  Nev.  339,  31  P.  642,  17  M.  R.  530.  Where 
the  width  of  the  claim  is  sufficient  to  allow  the  apex  to  be 
within  the  side  lines  all  doubt  on  the  point  ceases,  but  whore 
the  vein  discovered  on  the  dip  apexes  in  foreign  ground  it  is 
argued  that  it  never  becomes  the  property  of  the  locator ;  that 
though  he  may  rightfully  plant  his  discovery  shaft  on  the 
dip  he  must  so  locate  as  to  cover  the  apex  above  the  point  of 
discovery  with  his  survey. — Lindley  on  Mines,  sec.  36-1.  See 
33  L.  D.  142. 

The  case  is  stronger  for  such  a  discovery  after  patent,  for 
there  then  arises  a  presumption  that  the  patent  was  based  on 
a  valid  discovery.  If  there  be  a  valid  discovery  the  patent 
should  certainly  convey  the  vein  upon  which  such  discovery 
was  made;  and  the  equity  of  the  case  in  favor  of  such  an 
instance,  whether  location  or  patent,  is  to  urge  strongly 
against  such  close  construction  as  would  deprive  the  discov- 
erer of  his  asserted  rights. 

In  Colo.  Cent.  Co.  v.  Turck,  50  F.  888,  2  C.  C.  A.  67,  54  F. 
262,  4  C.  C.  A.  313,  a  junior  patent  was  allowed  to  take  the 
vein  on  the  dip  underlying  a  patent  whose  discovery  shaft 
was  on  the  same  vein,  but  the  vein  of  which  was  assumed  to 
leave  the  side  lines  on  its  strike,  though  it  dipped  back  and 
remained  between  them  carried  vertically  downward. 

The  Common  Law  Grant  of  the  Patent — Veins  Cut  Within 
the  Lines,  Apexing  Outside. 

The  literal  grant  of  a  patent  issued  under  the  Mining  Acts 
reads  as  if  it  conveyed  all  veins  apexing  within  the  lines  and 
excluded  all  those  whose  apices  were  outside.  And  such  is 
its  clear  meaning  where  a  prior  location  has  covered  the  apex 
of  such  veins  found  to  dip  underneath  the  patented  claim. 
But  where  in  sinking,  veins  or  deposits  are  found  which  have 
either  no  apex,  or  an  apex  not  located  upon  outside,  or  an 
apex  not  located  upon  at  the  date  of  the  patent  under  which 
such  veins  or  deposits  are  found,  to  whom  do  such  veins  or 
deposits  belong  t 


APEX.  213 

The  decisions  have  with  great  uniformity  held  that  such 
new  discoveries  presumptively  belong  to  the  patentee  and 
refuse  to  give  a  literal  construction  to  the  patent.  The  case  is 
fully  stated  and  the  point  ruled  in  Doe  v.  Waterloo  Co.,  54  F. 
935,  following  Duggan  v.  Davey,  4  Dak.  110,  26  N.  W.  887,  17 
M.  R.  59 ;  Leadville  Co.  v.  Fitzgerald,  4  M.  R.  385,  Fed.  Gas. 
No.  8158;  Mammoth  M.  Co.  v.  Gr.  Cent.  M.  Co.,  213  U.  S.  72, 
53  L.  Ed.  702,  29  Sup.  Ct.  Rep.  413. 

In  Montana  Co.  v.  Clark  the  ruling  was  made  that  such 
veins  apexing  outside,  but  not  located  outside,  remained  still 
the  property  of  the  United  States. — 16  M.  R.  80,  42  F.  626. 

This  ruling  is  theoretically  correct  and  such  vein  or  part  of 
a  vein  would  become  the  estate  of  any  locator  who  made  a 
proper  location  upon  such  apex  outside.  But  it  often  hap- 
pens that  all  the  surface  ground  has  been  taken  up  in  such 
form  that  while  the  apex  is  covered,  it  is  covered  in  such  shape 
as  to  allow  no  extralateral  rights,  and  where  such  is  the  case 
the  portions  of  the  vein  in  such  position  belong  to  the  party 
whose  survey  includes  them  within  the  vertical  planes  of  his 
side  and  end  lines.— Parrot  Co.  v.  Heinze,  25  Mont.  139,  87 
Am.  St.  Rep.  386,  53  L.  R.  A.  491,  21  M.  R.  232,  64  P.  326; 
State  v.  District  Court,  25  Mont.  504,  65  P.  1020. 

In  Roxanna  Co.  v.  Cone,  100  F.  168,  20  M.  R.  323,  the 
Court  refused  to  enjoin  in  favor  of  the  common  law  right  of 
the  complaining  lode  which  confessedly  had  no  apex,  the 
owners  of  all  the  claims  which  might  assert  apex  rights  not 
being  defendants  to  the  suit. 

Exception  of  Such  Veins  in  Favor  of  Proprietor  of  Other 
Lodes. 

In  Pacific  Coast  Co.  v.  Spargo,  16  F.  348,  8  Sawy.  645,  16 
M.  R.  75,  and  Amador  Co.  v.  South  Spring  Co.,  36  F.  668,  13 
Sawy.  523,  it  was  held  that  the  exception  of  veins  apexing 
outside,  in  favor  of  the  proprietors  of  such  veins,  should  be 
confined  to  instances  where  the  rights  of  such  proprietors 
were  in  existence  at  the  time  of  the  grant  to  the  patentee 


214  APEX. 

whose  claim  was  underlaid  by  such  veins.  But  all  the  later 
decisions  refuse  to  recognize  this  distinction,  and  treat  the 
exception  as  one  standing  for  the  benefit  of  future  as  well  as 
present  proprietors. — Turck  case,  supra;  Cheesman  v.  Hart, 
16  M.  R.  263,  42  F.  98. 

An  Owner  May  Amend  His  Survey,  Even  After  Patent 

applied  for,  to  keep  his  vein  within  his  shortened  claim,  by 
making  a  new  end  line  and  dropping  that  portion  into  which 
no  vein  extends. — Last  Chance  Co.  v.  Tyler  Co.,  61  P.  557,  9 
C.  C.  A.  613.  And  may  amend  to  correct  diverging  end  lines. 
—Doe  v.  Sanger,  83  Cal.  203,  23  P.  365.  The  right  so  to 
amend  is  undeniable,  but  we  apprehend,  where  rights  have 
become  vested  in  the  underlie,  that  such  amended  end  lines 
would  not  divest  such  rights  any  more  than  amended  surface 
lines  could  divest  the  rights  of  an  intervening  overlap.  "We 
can  see  no  difference  between  an  estate  vested  in  an  extra- 
lateral  portion  of  a  lode  and  an  estate  vested  in  the  surface 
of  the  same. 

Apex  Covered  by  Several  Patents. 

Where  there  are  several  contiguous  patents  the  dip-right  of 
each  must  be  treated  as  a  separate  grant.  The  two  patents 
can  not  be  considered  together  so  as  to  treat  them  as  if  they 
were  one  patent  enclosing  the  apex  of  the  vein. — Del  Monte 
Co.  v.  New  York  Co.,  66  F.  212,  18  M.  R.  188.  On  the  other 
hand,  in  Carson  City  Co.  v.  North  Star  Co.,  73  F.  598,  where 
the  owner  of  several  irregular  locations  had  patented  them 
together  they  were  treated  as  one  claim. 

Apex  Rights  of  Group  Patent. 

A  patent  conveyed  five  lodes.  The  apex  of  the  Los  Gazabo, 
one  of  the  group,  covered  the  apex  from  end  line  to  end  line. 
The  other  four  lodes  were  at  right  angles  to  the  apex  so  that 
they  had  no  extralateral  rights.  The  Los  Gazabo  had  been 
originally  located  over  the  other  four  prior  locations,  but  on 


APEX.  215 

the  patent  survey,  the  field  notes  had  conceded  the  overlap 
to  the  Los  Gazabo  and  excepted  its  area  from  the  other  four. 
The  Court  held  that  the  field  notes  could  be  looked  to  to 
explain  the  patent  and  that  it  would  be  treated  as  though  the 
Los  Gazabo  had  been  located  on  open  ground. — Round  Mtn. 
Co.  v.  Round  Mtn.  Co.,  36  Nev.  543,  138  P.  71,  reversing  the 
opinion  reported  in  35  Nev.  392,  129  P.  308.  The  apex  rights 
of  each  lode  were  construed  as  if  there  had  been  a  separate 
patent  on  each  claim. 

There  Can  Be  but  One  Set  of  End  Lines,  for  All  the  Veins 

covered  by  the  patent.  And  where  departure  from  one  or 
both  side  lines  renders  it  material,  only  the  discovery  vein 
can  be  used  to  determine  what  are  the  planes  of  the  end  lines. 
— Walrath  v.  Champion  Co.,  171  U.  S.  293,  43  L.  Ed.  170.  18 
Sup.  Ct.  Rep.  909,  19  M.  R.  410;  Cosmopolitan  Co.  v.  Foote, 
101  F.  518,  20  M.  R.  497 ;  St.  Louis  Co.  v.  Montana  Co.,  104 
F.  664,  56  L.  R.  A.  725,  44  C.  C.  A.  120,  21  M.  R.  57 ;  Jefferson 
Co.  v.  Anctioria  Co.,  32  Colo.  176,  64  L.  R.  A.  925,  75  P.  1070; 
Clark  Montana  Co.  v.  Butte  Co.,  233  F.  548. 

The  extralateral  rights  of  the  discovery  vein  determine  the 
extralateral  right  of  all  side  veins. — Stewart  Co.  v.  Ontario 
Co.,  23  Ida.  724,  132  P.  787. 

This  rule  was  applied  in  Anaconda  Co.  v.  Pilot  Butte  Co., 
where  there  were  not  only  two  veins  and  two  adjoining  pat- 
ents, but  a  merger  of  the  veins  on  the  dip. — (Mont.)  156  P.  409. 

A  single  case  which  seems  to  decline  this  rule  is  Ajax  Co.  v. 
Hilkey,  31  Colo.  131,  102  Am.  St.  Rep.  23,  62  L.  R.  A.  555,  72 
P.  447,  22  M.  R.  585. 

The  Doctor  Jack  Pot  Case. 

The  Doctor  Jack  Pot  M.  Co.  sued  the  Work  M.  Co.  to 
recover  two  ancillary  veins  of  the  Lucky  Corner  patent  alleg- 
ing that  neither  one  was  the  discovery  vein,  and  that  each  of 
them  crossed  a  side  line  and  an  end  line  of  the  patent,  and 
had  been  followed  down  on  their  dip  into  defendant's 


216  APEX. 

ground.  The  defendant  answered  that  the  Lucky  Corner 
never  had  a  lode  in  its  discovery  cut,  but  the  Court  struck 
out  this  part  of  the  answer,  saying  that  there  was  a  con- 
clusive presumption  in  favor  of  such  discovery,  and  allowed  a 
verdict  for  each  of  the  two  ancillary  veins  for  the  number  of 
feet  that  each  was  covered  diagonally  by  the  plaintiff's  senior 
patent. 

That  there  was  no  vein  in  fact  in  the  discovery  cut,  it  would 
seem  to  us  ought  to  be  provable  when  such  assumed  vein  is 
being  used  as  a  basis  for  claiming  and  fixing  extralateral 
rights.  If  it  may  be  shown  that  the  discovery  vein  leaves  its 
side  line,  it  seems  a  fortiori  that  a  party  would  be  allowed  to 
show  that  there  was  no  vein  there  to  follow  to  either  end  or 
side  line.  This  would  not  in  the  least  overthrow  the  rule  that 
the  discovery  can  not  be  impeached  for  the  purpose  of  defeat- 
ing the  patent  as  a  muniment  of  title.  But  the  decision  being 
affirmed  in  the  Circuit  Court  of  Appeals,  194  F.  620,  114 
C.  C.  A.  392,  settles  the  point  adversely  to  our  contention 
until  passed  on  by  the  Supreme  Court  and  so  we  yield  to 
authority,  our  reason  abiding  unconvinced. 

Relation  of  End  Line  to  Strike. 

The  extralateral  rights  being  defined  by  extending  the  end 
lines  as  parallel  vertical  planes,  it  is  apparent  that  unless  the 
end  lines  are  at  an  exact  right  angle  to  the  vein,  which  they 
rarely  are,  the  grant  of  the  patent  is  not  the  grant  of  the  right 
to  follow  down  on  the  dip,  underneath  the  same  feet  of  apex 
enclosed.  On  the  contrary,  there  must  be  a  gain  in  one  direc- 
tion and  a  corresponding  loss  in  the  other.  The  following 
diagram  will  illustrate  this : 


APEX. 


217 


The  Senior  and  Junior  lodes  above  are  on  the  same  vein,  the 
Senior  located  obliquely  to  the  apex.  The  Junior  is  correctly 
laid  on  the  strike  of  the  vein.  The  Senior  is  the  older  patent. 
By  the  dashed  lines  the  Senior  loses  the  bottom  of  its  own 
shaft  and  cuts  off  the  shaft  of  the  Junior  lode.  The  dotted 
lines  and  the  shafts,  of  course,  are  at  right  angles  to  the  strike 
of  the  vein. 

Right  to  the  Vein  Within  the  Four  Vertical  Planes. 

Although  where  the  lode  crosses  from  side  line  to  side  line 
it  loses  its  extralateral  rights,  the  claimant  has  a  certain  com- 
pensation by  being  allowed  to  follow  on  the  dip  to  his  end 
line. 

Where  a  dipping  lode  crosses  from  side  line  to  side  line,  in 
following  it  down,  it  is  obvious  that  two  shafts  sunk  on  the 
vein  at  the  two  points  where  it  leaves  the  side  lines  will 
enclose  between  them  all  that  part  of  the  vein  the  apex  of 
which  is  within  the  patent.— Lode  Y,  Plat  Q,  p.  221. 

The  right  to  the  part  of  the  lode  between  such  two  shafts 
in  going  down  is  lost  as  soon  as  the  vertical  plane  of  the  south 
side  line  is  reached.  This  is  the  ground  marked  B  on  Plat  Q. 
The  vein  below  on  B  the  claimant  of  Lode  Y  does  not  own. 
On  the  other  hand,  he  retains  all  of  C,  which  is  the  vein  within 
the  vertical  planes  of  his  side  lines  and  end  lines. 

A  patentee  following  down  on  the  dip  can  not  take  the  vein 
where  he  finds  it  between  vertical  side  and  end  lines  of  a  prior 


218  APEX. 

location  whose  vein  crosses  both  its  side  lines. — Tyler  Co.  v. 
Last  Chance  Co.,  71  F.  848,  18  M.  R.  303,  157  U.  S.  684,  39 
L.  Ed.  859,  15  Sup.  Ct.  Rep.  733,  18  M.  R.  205 ;  Argentine  Co. 
v.  Terrible  Co.,  122  U.  S.  478,  30  L.  Ed.  1140,  7  Sup.  Ct.  Rep. 
1356,  17  M.  R.  109. 

The  vein  may  be*  followed  between  the  planes  of  its  end 
lines  although  they  are  at  such  angle  to  the  vein  as  to  follow 
the  strike  rather  than  the  dip. — Bunker  Hill  Co.  v.  Empire 
State  Co.,  134  F.  268.  And  where  a  segment  is  cut  out  of  the 
lode  by  the  dip  rights  of  another  lode  the  ore  beyond  the 
segment  belongs  to  the  junior  lode.  Id. 

Following  Lode  Beyond  End  Line. 

In  the  Flagstaff  case,  the  Federal  Supreme  Court  uses  this 
language:  "The  side  lines  of  the  location  are  really  the  end 
lines  of  the  claim."  In  Last  Cliance  Co.  v.  Tyler,  157  U.  S. 
687,  39  L.  Ed.  859,  15  Sup.  Ct.  Rep.  733,  18  M.  R.  205,  it  says 
"the  side  lines  of  that  location  become  the  end  lines  and  the 
end  the  side  lines."  The  use  of  this  expression  is  far  from 
holding  that  extralateral  rights  may  be  pursued  beyond  the 
end  line.  In  neither  of  these  cases  was  the  ground  actually  in 
controversy  beyond  the  end  lines  of  any  of  the  claims  in  dis- 
pute, so  that  the  expressions  quoted  are  only  dicta  in  both 
instances. 

The  grant  of  a'  patent  is  of  a  piece  of  land  with  an  extra- 
lateral  grant  upon  a  certain  condition,  to-wit:  that  its  lines 
enclose  the  apex  of  a  vein,  which  vein  extends  "outside  the 
vertical  side  lines"  of  its  survey.  If  its  lines  enclose  such 
apex  from  end  line  to  end  line  or  from  end  line  to  side  line, 
the  condition  exists  and  its  extralateral  right  is  established. 

In  the  proposition  that  where  it  has  a  vein  going  through 
loth  side  lines  it  can  follow  such  vein  beyond  its  end  line 
there  is  no  assertion  of  a  condition  which,  having  been  ful- 
filled, some  right  accrues  as  the  incident  to  the  compliance 
with  the  condition. 


APEX.  219 

The  statute  expressly  gives  the  right  to  go  beyond  the  side 
line  upon  the  existence  of  the  condition;  it  does  not  give  such 
right  to  go  beyond  an  end  line.  Nor  is  there  any  known  prin- 
ciple of  law  which  would  enlarge  a  grant  in  derogation  of  the 
common  law,  and  therefore  to  be  strictly  construed — by  allow- 
ing the  grantee  who  fails  to  come  within  the  terms  of  the  con- 
dition of  his  grant  to  be  compensated  out  of  other  lands  upon 
the  supposition  of  an  implied  condition  to  that  effect. 

And  yet  the  contrary  is  strongly  contended  for  (Lindley, 
sec.  589),  and  in  the  only  suit  where  the  point  has  directly 
arisen,  a  case  arising  on  an  ore  contract  made  in  Arizona  and 
sued  on  in  Connecticut,  the  holding  was  made  that  the  vein 
could  be  pursued  beyond  its  end  line. — Empire  Co.  v.  Tomb- 
stone Co.,  100  F.  910,  20  M.  R.  443,  131  F.  339.  And  it  seems 
to  have  been  allowed  in  -Conkling  Co.  v.  Silver  King  Co.,  230 
F.  555. 

Also,  in  Bunker  Hill  Co.  v.  Empire  Co.,  109  F.  538,  48  C.  C. 
A.  665,  21  M.  R.  317,  the  point  was  conceded  to  the  same 
effect,  but  in  that  case  all  the  claims  involved  were  surveyed 
squarely  across  the  strike,  so  that  neither  had  any  status  as  to 
the  ore  in  contention  unless  it  was  so  conceded. 

When  a  lode  is  recorded  it  is  a  publication  to  the  world  that 
a  party  claims  all  veins  within  its  lines  with  the  right  to 
follow  on  the  dip  between  the  end  lines  protracted.  It  is,  as 
well,  a  disclaimer  of  all  other  rights.  The  record  shows  which 
lines  are  claimed  as  side  lines  and  which  as  end  lines.  Sub- 
sequent to  such  location  so  recorded  and  published  the  lode  is 
cut  on  the  dip  beyond  the  located  end  lines  by  tunnel.  The 
discoverer  by  tunnel  locates,  records  and  by  his  own  exploita- 
tion discloses  that  he  is  on  a  vein,  which  is  found  to  be  within 
the  space  between  the  protracted  side  lines  of  a  location  whose 
vein  has  crossed  both  its  side  lines,  whereupon  such  location 
claims  the  ore  by  its  pretended  right  to  follow  the  vein  beyond 
its  end  lines. 

We  will  never  concede  unless  and  until  compelled  by  bind- 
ing authority  that  by  the  mere  alliteration  of  language  "side 


220  APEX. 

lines  become  end  lines,"  "end  lines  become  side  lines,"  that 
the  first  locator  can  defeat  the  rights  of  such  tunnel  discovery, 
but  hold  that  he  is  estopped  by  his  record  to  claim  the  right  to 
pass  beyond  what  he,  by  his  own  act,  has  made  his  end  lines. 

Recapitulation — Explanation  of  Plat  Q. 

The  plat  on  page  221  will  illustrate  several  of  the  instances 
above  mentioned.  It  represents  a  vein  covered  by  a  location 
from  end  line  to  end  line;  another  location  where  the  vein 
crosses  from  side  line  to  side  line,  and  a  third  location  where 
the  vein  crosses  one  end  line  and  one  side  line.  The  dip  of 
the  vein  is  to  the  south,  that  is,  to  the  foot  of  the  plat. 

The  X  location  owns,  of  course,  its  entire  survey  and  may 
follow  the  vein  on  its  dip  between  its  vertical  end  lines 
extended  downward  indefinitely. 

Y,  whose  vein  crosses  both  side  lines,  owns  the  vein  in  the 
triangle  A.  He  does  not  own  B.  On  the  other  hand,  he  does 
own  C,  being  that  part  of  the  vein  between  his  vertical  side 
and  end  lines,  unless  X  is  the  older  location,  in  which  case  he 
loses  to  X  the  greater  part  of  C. 

As  to  whether  Y  has  any  estate  in  D,  being  the  extension  of 
hjs  vein  beyond  his  end  line,  is  the  question  discussed  on  page 
.218. 

Z,  whose  vein  leaves  one  end  line  and  one  side  line,  is  the 
owner  of  the  parcel  E,  and  the  parcel  F,  the  vein  on  the  dip, 
to  the  extent  of  his  extralateral  rights.  He  can  not  follow 
into  G.  The  vein  in  G  becomes  the  property  of  whoever  may 
disclose  and  locate  the  apex  in  the  vacant  ground  between  Y 
andZ. 


APEX. 


222  APEX. 

Presumption — Burden  of  Proof. 

The  presumption,  where  a  miner  is  found  beyond  his  side 
lines,  is  against  him.  He  is  prima  facie  a  trespasser  till  he 
has  shown  that  he  gets  there  by  following  the  lode  on  its  dip 
from  its  apex  within  his  lines. — Cheesman  v.  Shreeve,  16  M.  R. 
79,  37  F.  36;  Blue  Bird  Co.  v.  Murray,  9  Mont.  468,  23  P. 
1022;  Bell  v.  Skillicorn,  6  N.  M.  399,  28  P.  768;  Cons.  Wyom- 
ing Co.  v.  Champion  Co.,  63  F.  540,  18  M.  R.  113 ;  Iron  S.  Co. 
v.  Campbell,  17  Colo.  267,  29  P.  513;  Duggan  v.  Davey,  4 
Dak.  110,  26  N.  W.  887,  17  M.  R.  59 ;  Leadville  Co.  v.  Fitz- 
gerald, 4  M.  R.  380,  Fed.  Cas.  No.  8158 ;  Doe  v.  Waterloo  Co., 
54  F.  935;  Maloney  v.  King,  25  Mont.  188,  21  M.  R.  278,  64  P. 
351;  Red  Wing  Co.  v.  Clays,  30  Utah  242,  83  P.  841 ;  Gr.  Cent. 
Co.  v.  Mammoth  Co.,  29  Utah  490,  83  P.  648 ;  Keely  v.  Ophir 
Hill  Co.,  169  F.  601,  95  C.  C.  A.  99. 

But  the  fact  that  the  owner  is  claiming  extralateral  rights 
does  not  prevent  the  application  of  the  presumption  that  his 
surface  bounds  include  his  vein  in  such  a  manner  as  to  entitle 
him  to  extralateral  rights. — Wakeman  v.  Norton,  24  Colo.  192, 
49  P.  283,  18  M.  R.  698.  But  the  proof  of  the  continuity  of 
the  vein  downward  must  be  made. — Butte  Co.  v.  Societe,  23 
Mont.  177,  75  Am.  St.  Rep.  505,  58  P.  111. 

Presumptively  the  locator  or  patentee  is  the  owner  of  all 
ore  found  under  his  surface  and  the  burden  of  proof  to  the 
contrary  is  on  the  extralateral  claimant. — Liberty  Bell  Co.  v. 
Smuggler  Co.,  203  F.  805,  122  C.  C.  A.  113,  and  the  citations 
supra. 

The  presumption  that  the  lode  extends  throughout  the  claim 
applies  to  a  lode  location  within  a  placer. — San  Miguel  Co.  v. 
Bonner,  33  Colo.  207,  79  P.  1025.  Such  presumption  yields 
of  course  to  the  proof  when  it  shows  an  outside  apex. — Mon- 
tana Co.  v.  Boston  Co.,  27  Mont.  288,  22  M.  R.  471,  70  P.  1114. 
But  the  opinion  of  an  expert  based  on  calculation  of  the  dip 
through  long  space  of  unbroken  ground  is  not  enough  — 
Heinze  v.  Boston  Co.,  30  Mont.  484,  77  P.  421;  Collins  v. 
Bailey,  22  Colo.  App.  149,  125  P.  543. 


DIP.  223 

The  issue  of  a  patent  raises  a  presumption  that  the  lode  has 
an  apex  within  its  lines. — Iron  8.  Co.  v.  Campbell,  17  Colo. 
272,  29  P.  513.  And  the  possession  of  the  apex  is  the  posses- 
sion of  the  vein  to  the  full  extent  of  the  extralateral  right. — 
Empire  State  Co.  v.  Bunker  Hill  Co.,  121  F.  973,  58  C.  C.  A. 
311,  22  M.  R.  560;  Montana  Co.  v.  Boston  Co.,  27  Mont.  536, 
71  P.  1005. 

Parties  have  a  right  to  a  trial  by  jury  on  alleged  apex 
rights,  and  equity  has  no  jurisdiction  of  such  an  issue.—. 
Campbell  v.  Golden  Cycle  Co.,  141  F.  610,  73  C.  C.  A.  260; 
Illinois  Co.  v.  Raff,  1  N.  M.  336,  34  P.  544. 

It  is  not  essential  in  trespass  for  ore  taken  from  the  lode  on 
its  extralateral  dip  to  allege  in  terms  that  the  apex  of  the  vein 
is  within  plaintiff's  boundaries. — C.  v.  G.  C.  Co.,  supra. 

What  may  constitute  a  discovery  sufficient  to  validate  a 
location  may  be,  and  frequently  is,  a  very  different  thing  from 
what  constitutes  an  apex  of  a  vein  which  will  entitle  the 
owner  thereof  to  extralateral  rights. — Golden  v.  Murphy,  31 
Nev.  395,  103  P.  394,  105  P.  99. 

Much  stronger  proof  is  required  in  the  latter  case. — Id. 
But  in  Daggett  v.  Yreka  M.  Co.  it  was  held  that  the  apex 
claimant  need  not  necessarily  prove  a  continuous  tracing  of 
the  vein.— 149  Cal.  357,  86  P.  968. 

A  bill  to  quiet  title  to  extralateral  rights  will  not  lie  where 
there  has  been  no  development  to  show  whether  they  exist  or 
not.—Keely  v.  Opkir  Hill  Co.,  169  F.  601,  95  C.  C.  A.  99. 


DIP. 


Dip  is  a  proper  mining  term  and  has  a  plain  and  important 
signification.  It  means  the  line  of  departure  of  a  lode  from 
the  perpendicular.  The  number  of  degrees  may  of  course  be 
calculated  from  either  the  perpendicular  or  from  the  hori- 
zontal, and  the  usage  with  professional  surveyors  is  to  calcu- 
late the  degrees  from  the  horizontal,  but  miners  generally 


224 


DIP. 


speak  of  a  lode  as  dipping  so  many  degrees  from  the  perpen- 
dicular, especially  when  referring  to  lodes  worked  by  shafts. 
It  is  used  along  with  "angles  and  variations,"  in  the  A.  C. 
1866,  and  is  with  those  words  omitted  in  the  A.  C.  1872,  but 
its  place  is  supplied  by  the  phrase  (Sec.  2322)  : 

All  veins,  *  •  •  throughout  their  entire  depth,  •  •  • 
although  such  veins,  *  *  *  may  so  far  depart  from  a  perpendicular 
in  their  course  downward  as  to  extend  outside  the  vertical  side-lines,  of 
such  surface  locations. 

The  term  is  to  so  great  an  extent  associated  with  the  terms 
"apex"  and  "drainage"  that  it  has  been  necessarily  to  a  large 
extent  considered  under  those  heads.  See  APEX  and  DRAINAGE. 


Practical  Effect  of  Dip  to  Carry  the  Lode  Away  from  Ita 
Surface  Lines. 

A  lode  dipping  to  the  north  will  gain  horizontally  to  th« 
north  about  1.7  feet  in  100  feet  of  descent  for  each  degre« 
from  the  vertical. 

A  shaft  sunk  upon  a  dipping  vein  will,  in  100  feet  dspth 
measured  along  the  dip,  acquire  the  following  vertical  depths 
and  horizontal  departures  from  the  top  of  the  shaft  for  the 
following  angles,  all  taken  from  the  horizontal : 


ANGLE. 

10  degrees 
20 

30 
40 

4~> 
50 

GO 
70 
80 
90 


VERTICAL 
DEPTH. 

17.4  feet 
34.2 
50.0 
64.3 
70.71 
76.6 
86.6 
94.0 
98.5 
100.0 


HORIZONTAL 
DEPARTURE. 

98.5  feet 
94.0    " 

86.6  « 
?6.6 
70.71 
6*.3 
50,0 
34.;1 
17.4 

0.0 


DIP.  225 

Cubic  Incidents  of  Lode  Claims. 

From  the  outstart  it  should  be  kept  in  view  that  a  lode  claim 
is  a  solid  body  of  ground  and  not  a  "superficies." — Massot  v. 
Moses,  3  S.  C.  168,  16  Am.  Rep.  697,  8  M.  R.  607.  Dip  is 
only  one  of  the  incidents  of  this  fact.  A  placer  or  even  a  coal 
bed  furnishes  few  analogies  to  define  the  rights  of  a  claim 
which  leaves  the  surface  at  once  and  follows  its  own  course, 
governed  only  by  its  natural  but  invisible  boundaries. 

Estate  in  the  Dipping  Lode. 

Since  the  dip  may  carry  a  lode  under  the  side  lines  of  an 
adjoining  claim,  the  right  to  follow  such  a  lode  must  indicate 
either:  First — An  easement  to  which  the  adjoining  claim  is 
subject,  or,  rather,  Second — An  exception  out  of  the  estate  of 
the  adjoining  claim. 

The  maxim  that  ownership  extends  from  the  surface  to  the 
center  of  the  earth  in  vertical  planes,  in  either  event,  there- 
fore, does  not  apply  to  its  full  extent.  The  claim  in  its  down- 
ward course  is  governed  by  the  dip  of  the  vein  whose  apex 
appears  at  the  surface;  it  extends  under  the  vertical  planes 
of  the  adjoining  claims  on  one  side,  and  on  the  other  side  it 
leaves  veins  pitching  under  its  own  side  lines  as  the  property 
of  him  who  is  their  owner  at  the  surface. — Iron  Silver  Co.  v. 
Cheesman,  116  U.  S.  530,  29  L.  Ed.  712,  6  Sup.  Ct.  Rep.  481. 

Where  a  lode  cut  in  a  tunnel  has  a  dip  it  will  be  assumed 
that  it  carries  the  same  dip  to  the  surface. — Brewster  v.  Shoe- 
maker, 28  Colo.  176,  63  P.  309,  21  M.  R.  155. 

The  Side  or  Auxiliary  Veins,  Whose  Apices  May  Be  Within 

the  side  lines  of  the  claim  or  patent  have  the  same  right  to  the 
dip  as  has  the  principal  or  discovery  vein. — Jupiter  Co.  v. 
Bodie  Co.,  11  F.  666,  7  Sawy.  96,  4  M.  R.  412;  Walrath  v. 
Champion  Co.,  63  F.  552. 

No  Apex— No  Dip. 

Any  located  or  patented  claim  which  has  been  so  surveyed 
that  its  vein  runs  practically  at  right  angles  to  the  side  lines 


226  WALLS. 

can  not  claim  the  dip  beyond  its  side  lines. — The  Flagstaff 
case,  98  U.  S.  463,  9  M.  R.  607,  25  L.  Ed.  253 ;  McCormick  v. 
Varnes,  2  Utah  355,  9  M.  R.  506 ;  Argentine  Co.  v.  Terrible 
Co.,  122  U.  S.  478,  30  L.  Ed.  1140,  7  Sup.  Ct.  Rep.  1356,  17 
M.  R.  109,  and  cases  cited  under  APEX.  And,  as  we  contend, 
the  same  rule  controls  whenever  the  angle  is  enough  to  carry 
it  across  both  side  lines. 

Effect  of  End  Lines. 

The  end  lines  of  all  lode  claims  are  required  to  be  parallel ; 
and  where  the  lode  in  its  descent  reaches  the  end  lines  pro- 
tracted, the  claim  ceases  and  the  dip  can  not  be  followed 
across  the  protraction  of  end  lines. — Richmond  Co.  v.  Eureka 
Co.,  103  U.  S.  839,  26  L.  Ed.  557,  9  M.  R.  634;  Stone  Lode 
case,  118  U.  S.  196,  30  L.  Ed.  98,  6  Sup.  Ct.  Rep.  1177,  15 
M.  R.  641.  To  allow  the  end  lines  to  diverge  is  to  allow  the 
claimant  an  ever  increasing  lineal  extent  of  vein  as  he 
descends.  Page  207. 

When  the  Grantor  Conveys  a  Claim  or  Part  of  a  Claim  He 

conveys  the  right  to  follow  on  the  dip  all  veins  apexing  within 
the  granted  ground.— Stinchfield  v.  Gillis,  96  Cal.  33,  30  P. 
840,  17  M.  R.  497,  107  Cal.  84,  40  P.  98,  18  M.  R.  195 ;  Boston 
Co.  v.  Montana  Co.,  89  F.  529.  This  would  seem  self-evident 
in  a  conveyance  of  the  entire  claim  or  of  a  claim  divided 
across  from  side  line  to  side  line.  But  in  every  mining  deed 
the  dip  right  should  be  mentioned  in  express  terms. 


WALLS. 

Defined. 

In  a  contact  vein  the  roof  or  hanging  wall  is  the  plane  of 
the  contact  above;  the  floor  or  foot  wall  is  the  plane  of  the 
contact  below.  In  fissure  veins  the  walls  are  the  planes  of 
demarcation  between  the  country  and  the  gangue. 


WALLS.  .  227 

Relation  to  the  Country. 

It  should  seem  almost  self-evident  that  the  nature  of  the 
wall  must  depend  upon  the  nature  of  the  country  rock  and  the 
nature  of  the  material  which  it  encloses.  Between  certain 
rocks  the  plane  of  separation  would  be  distinct  and  trace- 
able; between  other  rocks  a  diffusion  of  the  oxides  and  min- 
erals of  the  enclosed  material  through  the  adjoining  country 
would  obliterate  more  or  less  all  trace  of  the  original  plane  of 
division.  Where  this  plane  of  division  is  manifest  to  the  eye 
there  is  what  miners  call  a  wall — where  it  has  become  oblit- 
erated they  say  there  is  no  wall.  It  is  therefore  manifest  that 
the  fact  of  the  absence  of  one  or  both  walls  is,  in  itself  alone, 
no  proof  of  the  non-existence  of  a  vein,  they  being  a  mere 
accidental  circumstance.  And  it  has  been  so  decided  in  the 
Lime  Lode  Case,  116  U.  S.  530,  29  L.  Ed.  712,  6  Sup.  Ct.  Rep. 
481,  and  in  the  Durant  case,  29  F.  354,  15  M.  R.  519.  In  the 
former  decision,  after  denning  what  constitutes  a  lode  as  a 
"body  of  mineral  or  mineral-bearing  rock  within  denned 
boundaries,"  MILLER,  J.,  adds:  "In  the  existence  of  such 
body  and  to  the  extent  of  it,  boundaries  are  implied."  In  the 
latter  case,  in  such  language  as  would  be  used  by  a  lawyer 
thoroughly  familiar  with  the  subject-matter,  HALLETT,  J., 
says :  ' '  It  is  true  that  a  lode  must  have  boundaries,  but  there 
seems  to  be  no  reason  for  saying  that  they  must  be  such  as 
can  be  seen." 

Broken  Ground— Slips— Natural  Cleavage. 

It  is  also  evident  that  subsequent  disturbance  of  the  vein  , 
matter  would  tend  to  destroy  the  continuity  of  the  wall ;  and  : 
in  many  classes  of  rock  the  natural  cleavage  is  such  as  often 
to  be  mistaken  for  and  followed  as  a  wall.    In  such  ground  a 
very  little  manipulation  may  be  made  to  show  an  apparent 
wall  where  none,  in  fact,  exists. 

Disappearance  of  Wall. 

It  is  nevertheless  true  that  where  a  wall  has  shown  itself 
for  some  distance  and  disappears — that  is  an  important  item 


228  SPURS. 

to  be  considered  where  the  further  continuity  of  the  vein  is 
made  doubtful  by  reason  of  the  simultaneous  disappearance 
of  the  mineral  and  an  apparent  change  in  the  rock  which  is 
being  followed.  See  page  45. 

Wall  or  Side  of  Working. 

It  is  also  to  be  observed  that  the  term  "wall"  is  often  used 
with  reference  to  the  actual  side  of  a  drift,  shaft  or  other 
working  without  reference  to  its  association  with  the  vein,  and 
finding  mineral  by  "cutting  through  the  wall"  is  spoken  of 
by  working  miners  as  if  it  implied  no  contradiction  of  terms. 


SPURS. 


The  word  spurs  is  not  found  in  any  of  the  Acts  of  Congress 
nor  in  the  patents  issued  under  them.  It  is  a  dangerous  term, 
because  its  meaning  is  relative,  not  definite.  That  which, 
when  first  discovered,  may  be  called  a  spur,  may  prove  to  be  a 
better  developed  vein  than  the  lode  from  which  it  strikes  off. 

But  the  term  found  its  way  into  the  Colorado  Territorial 
Act  of  1866,  and  is  seen  in  many  records;  when  properly 
applied  it  signifies  a  feeder  to,  or  off-shoot  from,  a  lode.  As 
such  it  is  part  and  parcel  of  the  lode,  at  least  as  far  as  the  side 
lines  of  the  claim,  and  if  it  extended  much  further  it  could 
hardly  be  called  a  spur. 

A  spur  is  defined  (Bainbridge,  p.  2,  note)  as  "A  lateral 
branch  from  the  main  lead,  not  returning  to  it,  but  losing 
itself  in  the  surrounding  soil." 

Though  called  a  spur  (which  word  is  apt  to  be  used  as  a 
slurring  term)  it  is  in  law  a  lode  upon  which  a  valid  title  may 
be  founded  if  it  do  in  fact  show  a  "well-defined  crevice." 

Where  repeated  locations  have  been  made  upon  a  mineral 
vein  it  is  too  late  to  call  it  a  spur,  especially  where  the  law 
fixes  no  limit  to  the  size  of  the  vein  which  may  be  located,  nor 


ANGLES  AND  VARIATIONS.  229 

admits  comparison  of  different  sizes  between  conflicting  loca- 
tions.— Carson  City  Co.  v.  North  Star  Co.,  73  F.  601. 

When  the  discovery  or  existence  of  a  lode  is  in  contention, 
its  size,  strength,  continuity  and  other  like  incidents  are  ques- 
tions of  fact  to  be  found  by  the  jury. — Blue  Bird  Co.  v.  Lar- 
gey,  49  F.  289;  Book  v.  Justice  Co.,  58  F.  106,  17  M.  R.  617. 

Ore  bodies  formed  off  from  the  fissure  do  not  form  separate 
veins.— Tombstone  M.  Co.  v.  Way  Up  Co.,  1  Ariz.  426,  25  P. 
794. 


ANGLES  AND  VARIATIONS. 


Use  in  Statutes  and  Conveyancing. 

In  Sec.  4,  A.  C.  1866,  the  words  "angles  and  variations" 
were  used,  and  under  the  act  a  lode  was  patented  with  its 
"angles  and  variations."  They  are  neither  law  terms  nor 
technical  mining  expressions,  but  are  supposed  to  cover  the 
digressions  of  a  lode  from  a  straight  line,  and  might  be 
extended  to  "faults."  In  arguing  the  important  question 
arising  upon  patents  under  the  old  law  when  the  vein  left  the 
side  lines,  these  words  were  strongly  urged  as  indicating  the 
intention  to  pass  the  vein  as  the  essential  grant  of  the  patent. 
These  words,  or  like  terms,  are  in  common  use  in  the  phrase- 
ology of  mining  deeds  (Bullion  v.  Croesus  Co.,  2  Nev.  168,  90 
Am.  Dec.  526,  5  M.  R.  257)  but  are  not  words  of  essential 
description. 

Irregular  Surveys  With  Unnecessary  Angles. 

A  lode  may  and  should  be  surveyed  to  cover  all  its  angles. 
But  acute  angles  such  as  were  attempted  in  the  Stone  Lode, 
leading  to  fantastic  figures,  widely  different  from  the  par- 
allelogram intended  in  the  Act  of  Congress,  even  if  they  have 
two  parallel  courses  which  they  call  end  lines,  run  a  risk  of 
being  ruled  out  of  any  right  to  claim  beyond  their  side  lines. 


230  ANGLES  AND  VARIATIONS. 

In  other  respects  they  may  be  wholly  valid  if  the  end  lines 
are  regular  and  the  statutory  width  and  length  are  not 
exceeded.— Iron  Silver  Co.  v.  Elgin  Co.,  15  M.  R.  641,  118 
U.  S.  200,  30  L.  Ed.  98,  6  Sup.  Ct.  Rep.  1177. 

Whether  the  presumption  allowed  in  ordinary  cases  (Arm- 
strong v.  Lower,  6  Colo.  582,  15  M.  R.  458),  that  the  survey 
covers  the  vein  would  be  indulged  to  a  claim  which  has  acute 
angles,  may  be  doubted.  Such  presumption  is  merely  to  fix 
the  party  on  whom  is  the  burden  of  proof,  and  on  an  angled 
claim  ought  to  yield  to  very  slight  evidence. 

In  the  case  of  the  Jack  Pot  Lode  the  Department  required 
an  amended  survey  where,  by  assuming  a  zigzag  shape,  the 
width  of  the  claim  exceeded  600  feet,  and  also  ruled  that  a 
long  end  line  parallel  to  another  end  line  less  than  three 
inches  long  could  not  be  allowed  as  a  parallel  end  line  within 
the  meaning  of  the  law.— 34  L.  D.  470. 

Angles  to  Allow  for  Erosion  and  Slope. 

A  vein  may  have  an  angle  of  its  own,  without  regard  to  its 
dip  or  the  contour  of  the  surface.  In  such  case  it  is  obvious 
that  its  survey  must  have  a  corresponding  angle.  If  the  vein 
is  not  only  straight,  but  perfectly  vertical,  no  angles  are 
needed,  because  a  parallelogram  will  always  cover  such  vein. 

Also,  where  the  vein  has  no  angle  on  its  strike,  no  angle  is 
required  where  the  outcrop  is  on  a  flat  surface  or  if  the  vein 
runs  straight  up  and  down  the  mountain  or  if  it  is  on  an  even 
slope  not  sunk  by  erosion  nor  heaved  by  a  fault. 

But  where  the  vein  has  a  dip  and  outcrops  at  an  angle  to 
the  contour  of  the  surface,  there  must  be  an  angle  in  the 
survey  to  cover  its  outcrop. 

This  is  made  necessary  because  erosion  has  brought  the 
lower  part  of  the  vein  laterally  to  a  point  beyond  the  plane  of 
the  higher  parts  of  the  vein. 


DRAINAGE. 


231 


The  above  plat  is  an  endeavor  to  explain  the  text.  A  B  is  a 
vein  dipping  to  the  south  on  a  slope  where  the  east  end  of  the 
outcrop,  and  the  country  with  it,  has  been  worn  down  so  that 
B  is  considerably  lower  than  A.  It  is  clear  that  the  parallelo- 
gram 1,  2,  3,  4  would  lose  the  apex  at  the  point  X,  but  the 
lines  1,  5,  6,  7,  8,  4  would  enclose  it  within  both  end  lines. 


DRAINAGE— FLOODING. 


Legislative  Control. 

Sec.  3. — The  general  assembly  may  make  such  regulations,  from  time 
to  time,  as  may  be  necessary  for  the  proper  equitable  drainage  of  mines. 
—Colo.  Const.  Art.  XVI. 

Under  the  above  authorization  R.  S.  Sees.  4226-4234 
attempt  fo  regulate  this  subject.  Such  State  control  is  also 
recognized  in  Section  2338  of  the  U.  S.  Statutes. 

But  the  subject  itself  is  one  of  inherent  difficulty.  The 
act  seeks  to  provide  that  where  one  mine  drains  another,  the 
mine  thus  benefited  shall  pay  its  proportion  of  the  cost  of 
drainage.  Where  a  tunnel  or  lower  adit  drains  another  mine, 


232  DRAINAGE. 

it  is  doubtful  whether  such  acts  have  any  application,  as 
such  drainage  is  only  incidental. — Baird  v.  Williamson,  15  C. 
B.  N.  S.  376,  4  M.  R.  368 ;  Townsend  v.  Peasley,  35  Wis.  383, 
2  M.  R.  612.  But  where  one  mine  hoists  the  water  of  another 
a  natural  equity  is  more  apparent,  and  statutes  in  aid  of  con- 
tribution, even  giving  a  royalty  to  the  draining  mine,  have 
been  enforced. — Ahren  v.  Dubuque  Co.,  5  M.  R.  144,  48  la.  140. 

The  mine  owner  is  liable  where  for  want  of  reasonable  fore- 
sight he  so  worked  as  to  tap  a  lake  and  drown  out  the  adjoiner. 
— Duff  v.  U.  8.  Gypsum  Co.,  189  F.  234. 

The  city  of  Butte  was  held  in  damages  for  flooding  a  mine 
from  defective  sewer. — Kelly  v.  Butte,  44  Mont.  115,  119  P. 
171. 

Coal  Mines. 

Where  in  case  of  veins  or  deposits  of  the  class  represented 
by  coal  beds,  one  mine  lies  under  the  dip  of  another  mine  at  a 
higher  level,  it  is  under  servitude  to  the  water  flow  of  the 
mine  above. — Philadelphia  Co.  v.  Taylor,  5  M.  R.  133,  5  Leg. 
Gaz.  392 ;  Spadra  Co.  v.  Eureka  Co.,  104  Ark.  359,  Ann.  Gas. 
1914C,  454, 148  S.  W.  644. 

Servitude  of  the  Lower. 

In  lode  mines  the  same  rule  applies — that  the  lower  work- 
ings must  stand  the  water  from  the  higher  pits,  subject  to 
such  regulations  as  the  Drainage  Act  supplies,  where  such  act 
exists  and  its  provisions  can  be  enforced ;  and  the  upper  mine 
can  not  wantonly  cast  its  water  on  the  lower. — Locust  Co.  v. 
Oorrell,  9  Phila.  247,  5  M.  R.  129.  The  same  rule  applies  to 
quarries.— Ulmer  v.  Famsworth,  15  Atl.  65,  80  Me.  500,  17 
M.  R.  134. 

Breaking  Barrier. 

The  adjoiner  is  liable  for  the  damage  caused  by  breaking 
the  barrier,  but  he  is  not  bound  to  restore  it. — Lord  v.  Carbon 
Co.,  42  N.  J.  Eq.  157,  6  Atl.  812. 


DITCHES  AND  WATER.  233 

A  Drainage  Contract  Between  Two  Mines  Having  a  Common 

water  burden  was  construed  and  enforced  and  a  heavy  judg- 
ment for  damages  sustained,  the  Court  holding  that  the  rela- 
tion of  the  mines  to  the  common  enemy  was  such  that  there 
was  ample  consideration  for  the  promise  to  contribute;  that  a 
promise  to  pay  what  was  proper  and  fair,  the  mines  being 
equally  benefited,  meant  a  promise  to  pay  one-half  of  the 
expense  and  that  the  managing  agent  of  the  corporation  had 
power  to  make  such  a  contract. — Fish  M.  Co.  v.  Reed,  32  Colo. 
506,  77  P.  241. 

Springs. 

The  mine  operator  is  not  liable  for  drainage  of  surface 
springs.— Sloss  Co.  v.  Sampson,  158  Ala.  590,  48  So.  493. 


DITCHES  AND  WATER. 



Congressional  Recognition  of  Easements. 

R.  S.  Sec.  2339.— Whenever,  by  priority  of  possession,  rights  to  the 
use  of  water  for  mining,  agricultural,  manufacturing,  or  other  purposes, 
have  vested  and  accrued,  and  the  same  are  recognized  and  acknowledged 
by  the  local  customs,  laws,  and  the  decisions  of  courts,  the  possessors  and 
owners  of  such  vested  rights  shall  be  maintained  and  protected  in  the 
same;  and  the  right  of  way  for  the  construction  of  ditches  and  canals 
for  the  purposes  herein  specified  is  acknowledged  and  confirmed;  but 
whenever  any  person,  in  the  construction  of  any  ditch  or  canal,  injures  or 
damages  the  possession  of  any  settler  on  the  public  domain,  the  party 
committing  such  injury  or  damage  shall  be  liable  to  the  party  injured 
for  such  injury  or  damage. — Sec.  d,  A.  C.  July  %6,  1866. 

This  section  not  repealed  by  later  acts. — U.  S.  v.  Utah  Co., 
208  F.  821. 

Excepted  in  Patent. 

R.  S.  Sec.  2340. — All  patents  granted,  or  pre  emption  or  homesteads 
allowed,  shall  be  subject  to  any  vested  and  accrued  water-rights,  or  rights 
to  ditches  and  reservoirs  used  in  connection  with  such  water-rights  as 
may  have  been  acquired  under  or  recognized  by  the  preceding  section. 
— Sec.  17,  A.  C.  July  9, 1870. 


234  DITCHES  AND  WATER. 

Claims  Subject  to  Ditches,  Flumes  and  Trails — Parol  License. 

R.  S.  Colo.  Sec.  4216. — All  mining  claims  now  located  or  which  may 
be  hereafter  located,  shall  be  subject  to  the  right  of  way  of  any  ditch  or 
flume  for  mining  purposes,  or  of  any  tramway  or  pack  trail,  whether 
now  in  use  or  which  may  be  hereafter  laid  out  across  any  such  location ; 
Provided,  always,  That  such  right  of  way  shall  not  be  exercised  against 
any  location  duly  made  and  recorded,  and  not  abandoned  prior  to  the 
establishment  of  the  ditch,  flume,  tramway  or  pack  trail,  without  consent 
of  the  owner,  except  by  condemnation,  as  in  case  of  land  taken  for  public 
highways.  Parol  consent  to  the  location  of  any  such  easement  accom- 
panied by  the  completion  of  the  same  over  the  claim  shall  be  sufficient 
without  writings;  And  Provided  further,  That  such  ditch  or  flume  shall 
be  so  constructed  that  the  water  from  such  ditch  or  flume  shall  not  injure 
vested  rights  by  flooding  or  otherwise. — Feb;  IS,  1874. 

Besides  the  Act  of  1866,  above  printed,  Congress  allows 
right  of  way  to  ditches,  tramways,  reservoirs  and  power  lines 
over  the  public  lands  by  Act  of  1895  and  its  amendment. — 28 
St.  L.  635,  29  Id.  129,  30  Id.  404. 

The  Desert  Land  Act  recognizes  the  right  to  divert  water 
for  mining  and  irrigation. — Caviness  v.  La  Grande  Co.,  60  Or. 
410,  119  P.  731. 


The  Right  of  the  Miner  to  Divert  Water  from  Its  Natural 

stream,  in  opposition  to  the  common  law,  has  been  not  only 
granted  under  the  above  Act  of  1866,  but  the  doctrine  of 
appropriation  has  now  become  universally  conceded  in  all  the 
mining  and  arid  states  of  the  Pacific  and  Rocky  Mountain 
slopes.— Atchison  v.  Peterson,  1  M.  R.  583,  20  Wall.  507,  22 
L.  Ed.  414;  Jennison  v.  Kirk,  4  M.  R.  504,  98  U.  S.  453,  25  L. 
Ed.  240;  Snyder  v.  Colo.  Co.,  181  P.  62, 104  C.  C.  A.  136. 

The  party  who  first  appropriates  the  water  for  mining, 
irrigation  or  other  beneficial  use,  obtains  the  right  to  use  it 
both  as  against  those  who  later  attempt  to  tap  the  stream 
above,  "or  who  need  it  in  the  stream  below.  Neither  agricul- 
tural nor  mining  uses  have  any  class  priority  one  over  the 
other.  The  first  in  time  is  the  first  in  right.  A  homestead  or 
other  entry  is  subject  to  the  rights  of  a  prior  appropriation  of 


DITCHES  AND  WATER.  235 

water.— South  Yuba  Co.  v.  Rosa,  80  Cal.  333,  22  P.  222; 
Tynon  v.  De&pain,  22  Colo.  240,  43  P.  1039. 

Water  diverted  in  one  State  will  be  protected  against  a  later 
appropriation  above  although  in  another  State.  State  lines 
cut  no  figure  in  such  case  and  the  appropriation  is  governed  by 
the  laws  of  the  State  where  made. — Morris  v.  Bean,  146  F.  423. 

A  Ditch  Is  an  Easement  Over  the  Land  which  It  Crosses. 

—Quinlan  v.  Nolle,  75  Cal.  250,  17  P.  69.  A  party  can  not 
locate  a  ditch  in  such  a  manner  as  to  prevent  the  practical 
mining  by  hydraulic  power,  or  otherwise,  of  claims  which  it 
crosses;  nor  so  as  to  cut  off  the  water  used  by  the  hydraulic. 
When  ditch  crosses  ditch,  the  later  claimant  must  adjust  the 
crossings  so  as  not  to  interfere  with  the  full  use  of  the  prior 
ditch. — Jennison  v.  Kirk,  supra. 

Appropriation  by  Placer  Location. 

It  has  been  held  that  a  placer  location  is  of  itself  an  appro- 
priation of  all  the  water  flowing  across  it  to  the  extent  needed 
for  working  it.— Schwab  v.  Beam,  86  P.- 41, 19  M.  R.  279.  This 
is  an  extreme  holding  and  seems  to  us  an  indefensible  position. 

Since  the  above  paragraph  was  in  print,  Schwab  v.  Beam 
has  been  expressly  overruled  by  Snyder  v.  Colo.  Co.,  181  F.  68, 
104  C.  C.  A.  136. 

Change  of  Point  of  Diversion  or  Place  of  Use. 

The  change  of  locality  where  water  is  used  does  not  forfeit 
the  right.— Maeris  v.  Bicknell,  7  Cal.  262,  68  Am.  Dec.  257, 
1  M.  R.  601.  The  owner  may  change  either  the  point  of  diver- 
sion or  the  place  of  use. — Telluride  v.  Davis,  33  Colo.  355, 
108  Am.  St.  Rep.  101,  80  P.  1051 ;  Strickler  v.  Colo.  Springs, 
16  Colo.  61,  25  Am.  St.  Rep.  245,  26  P.  314.  If  he  has  prior 
right  to  the-water  he  may  take  it  by  a  new  and  different  ditch. 
—Jacob  v.  Lorenz,  98  Cal.  332,  33  P.  120;  Greer  v.  Heiser, 
16  Colo.  306,  26  P.  770. 


236  DITCHES  AND  WATER. 

Intervening  Right. 

But  he  can  not  change  the  point  of  diversion  or  the  line  of 
his  ditch  to  the  injury  of  those  who  have  in  the  meantime 
acquired  rights. — Last  Chance  Co.  v.  Bunker  Hill  Co.,  17  M.  R. 
449,  49  F.  430 ;  Handy  Ditch  Co.  v.  Louden  Co.,  27  Colo.  515, 
62  P.  847 ;  Fuller  v.  Swan  River  Co.,  12  Colo.  12, 16  M.  R.  252, 
19  P.  836. 

The  subsequent  appropriator  who  makes  his  diversion,  under 
the  belief  that  the  water  appropriated  by  the  senior  appropri- 
ator will  continue  to  be  used  as  it  was  until  the  time  of  the 
subsequent  appropriation,  acquires  a  vested  right  to  insist  on 
such  conditions. — Baer  Bros.  Co.  v.  Wilson,  88  P.  265, 
38  Colo.  101. 

Placer  water  after  use  was  appropriated  for  irrigation. 
Held,  that  the  miner  could  not  change  the  point  of  diversion  so 
as  to  cut  off  such  second  appropriator. — Head  v.  Hale,  38 
Mont.  302,  100  P.  222. 

A  Party  May  Use  the  Bed  of  a  Natural  Stream  as  His  Means 

of  conducting  water  added  to  it  by  a  ditch,  without  being  con- 
sidered as  abandoning  the  water  by  mingling  it  with  the  orig- 
inal waters  of  the  stream. — Butte  Co.  v.  Vaughn,  11  Cal.  143, 
70  Am.  Dec.  769,  4  M.  R.  552 ;  Oppenlander  v.  Left  Hand  Co., 
18  Colo.  142,  31  P.  854. 

Location  of  Ditch  Right. 

At  the  point  where  water  is  taken  from  the  stream,  post 
notice  as  follows : 

DITCH  NOTICE. 

MIDLAND  DITCH. — I  claim  150  inches  of  the  water  of  this  stream,  to  be 
taken  by  ditch  from  this  point  to  claims  on  Wightman's  Gulch,  in  Summit 
Mining  District,  Bio  Grande  County,  for  mining  purposes. 

January  17,  3916.  ALEXANDER  G.  COCHRAN. 

The  posting  of  this  notice,  where  local  statutes  require  no 
further  filings,  would,  when  accompanied  by  collateral  acts 
showing  intention  to  follow  up,  give  a  reasonable  time  to  begin 
the  ditch.— Dyke  v.  Caldivell,  2  Ariz.  394,  18  P.  276. 


DITCHES  AND  WATER.  237 

The  ditch  should  be  staked  and  work  commenced  and  prose- 
cuted Avith  reasonable  diligence.  If  the  notice  be  not  followed 
up  within  a  reasonable  time  by  actual  work  in  carrying  out 
the  intended  appropriation,  it  amounts  to  absolutely  nothing. 

Unless  required  by  district  rule  or  statute  the  existence  of  a 
record  could  not  be  insisted  on  as  a  condition  of  title,  where 
the  ditch  is  actually  constructed  and  continuously  used.  But 
record  is  customary,  always  advisable,  and  when  made  becomes 
the  initial  point  in  the  chain  of  recorded  title. 

In  Colorado,  by  Act  of  1903,  R.  S.  Sec.  3181,  duplicate  maps 
and  statements  are  required  to  be  filed  with  the  State  Engineer 
within  sixty  days  after  the  commencement  of  actual  construc- 
tion, or  the  beginning  of  the  survey  of  the  ditch.  After 
approval  the  State  Engineer  certifies  the  duplicate  map  and 
statement,  returning  it  to  the  claimant,  who  must  file  it  within 
ninety  days  from  the  time  stated  as  the  date  of  commencement, 
with  the  Recorder  of  the  county  in  which  the'  headgate  is 
located. 

DITCH   STATEMENT. 

KNOW  ALL  MEN  EY  THESE  PRESENTS,  That  I,  Alexander  G.  Cochran, 
of  St.  Louis,  in  the  State  of  Missouri,  do  hereby  declare  and  publish  as 
a  legal  notice  to  all  the  world  that  I  have  a  valid  right  to  the  occupation 
and  possession  of  that  certain  tract  or  parcel  of  land  lying  in  Summit 
Mining  District,  in  the  County  of  Eio  Grande,  State  of  Colorado,  for  ditch 
and  mining  purposes,  and  more  particularly  described  in  the  map  hereto 
attached.  That  I  have  located  the  MIDLAND  Difcn,  and  do  hereby  make 
and  file,  in  compliance  with  the  laws  of  the  State  of  Colorado,  this  state- 
ment in  duplicate,  and  that  the  accompanying  map,  which  shows  the  loca- 
tion of  said  ditch,  forms  a  part  of  this  filing  and  is  hereby  made  a  part 
thereof. 

First — The  headgate  is  located  at  a  point  on  the  south  bank  of  the 
Alamosa  river,  from  which  it  derives  its  supply  of  water,  whence  the 
N.  E.  corner  of  Section  No.  31,  Township  37,  Kange  4  East  of.  the  New 
Mexico  Principal  Meridian,  bears  N.  45°  E.  600  feet. 

Second — Said  ditch  is  four  feet  deep,  five  feet  wide  at  the  top  and 
four  feet  wide  at  the  bottom;  the  grade  is  ten  feet  per  1,000  feet  and 
the  length  is  2^  miles. 

Third — The  carrying  capacity  of  said  ditch  is  150  cubic  feet  per 
second  of  time. 


238  DITCHES  AND  WATER. 

Fourth — Work  was  commenced  on  said  ditch  on  the  17th  day  of 
January,  1916. 

(Claimant  may  take  either  date  of  survey  or  date  of  actual  construc- 
tion begun  for  this  paragraph.) 

Fifth — The  estimated  cost  of  ditch  is  $3,000. 

ALEXANDER  G.  COCHRAN. 

STATE  OF  COLORADO,  County  of  Fremont:  ss. 

Alexander  G.  Cochran,  being  first  duly  sworn,  deposes  and  says  that 
he  is  the  claimant  of  the  within  named  ditch  and  water-right ;  that  he  has 
read  the  foregoing  statement  and  has  examined  the  accompanying  map, 
and  that  the  same  are  true  to  the  best  of  his  knowledge  and  belief. 

ALEXANDER  G.  COCHRAN. 

Subscribed  and  sworn  to  before  me  this  1st  day  of  February,  A.  D.  1916. 

George  W.  Clelland, 

Notary  Public. 

The  map  accompanying  the  above  statement  is  required  to  be 
on  white  linen  drawing  paper,  24  by  36  inches  in  size,  with  a 
two  inch  margin  on  the  left  side,  and  should  show  the  fol- 
lowing : 

First — The  location  of  the  headgate  by  course  and  distance  to  a  corner 
of  the  public  survey,  or  if  upon  unsurveyed  land,  to  some  natural  object, 
so  that  the  same  may  be  easily  located. 

Second — The  general  course  and  the  name  of  the  stream. 

Third — The  route  of  the  ditch  by  course  and  distance. 

Fourth — The  legal  40  acre  subdivisions  and  other  patented  lands. 

Fifth — The  ownership  of  all  lands  crossed  by  the  ditch  or  canal. 

And  should  also  coatain  the  following: 

AFFIDAVIT  OF   SURVEYOR. 

STATE  OF  COLORADO,  County  of  Fremont:  ss. 

E.  E.  Chase,  being  duly  sworn  on  oath,  deposes  and  says  that  he  is  the 
engineer  (or  surveyor)  of  the  MIDLAND  DITCH;  that  the  survey  of  the 
same  and  the  map  thereof  was  made  by  him  (or  that  such  map  was  made 
under  his  instructions),  and  that  such  survey  is  accurately  represented 
upon  this  map;  that  he  has  read  the  statement  thereon,  and  that  the  same 
is  true  of  his  own  knowledge. 

E.  E.  CHASE, 
Engineer  (or  Surveyor). 

Subscribed  and  sworn  to  before  me  this  1st  day  of  February,  A.  D.  1916. 

George  W.  Clelland, 

Notary  Public. 


DITCHES  AND  WATER.  239 

When  it  is  impracticable  to  make  a  complete  survey  and 
maps  within  the  sixty  day  period,  temporary  maps  may  be 
filed  with  the  statements,  to  be  supplemented  by  a  detailed  map 
when  the  survey  is  completed. 

When  local  statutes  do  not  require  other  details  or  the  filing 
of  maps  the  above  statement  would  be  a  valid  location  cer- 
tificate of  ditch  rights,  by  incorporating  into  the  statement  a 
description  of  the  course  of  the  ditch,  and  omitting  reference 
to  the  map. 

The  appropriation  of  water  in  most  of  the  States  is  now, 
1916,  regulated  or  attempted  to  be  regulated  by  statutes  not 
at  all  uniform.  Such  statutes  must  be  consulted  in  connection 
with  the  general  principles  in  this  chapter  indicated. 

How  Conveyed. 

Right  to  water  appropriated  may  be  transferred  like  other 
property.  A  ditch  is  real  estate  and  is  conveyed  by  deed. 
—Smith  v.  O'Hara,  1  M.  R.  671,  43  Cal.  371 ;  Bradley  v.  Hark- 
hess,  26  Cal.  69,  11  M.  R.  389 ;  Burnham  v.  Freeman,  11  Colo. 
601,  17  P.  761,  R.  S.  Colo.  Sec.  669. 

Appurtenance. 

Whether  a  deed  of  land  conveys  the  ditches  and  water  rights 
depends  upon  the  intent  of  the  grantor,  and  may  be  implied 
where  the  use  is  necessary  to  its  beneficial  enjoyment. — Arnett 
v.  Linlmrt,  21  Colo.  188,  40  P.  355;  Gelwicks  v.  Todd,  24  Colo. 
494,  52  P.  788.  The  water  right  goes  with  the  sale  of  a  mill 
site.— N.  A.  Co.  v.  Adams,  104  F.  404,  45  C.  C.  A.  185,  21  M.  R. 
65.  The  ditch  was  held  no  appurtenance  in  Quirk  v.  Falk, 
47  Cal.  453,  2  M.  R.  19,  and  Ginocchio  v.  Amador  Co.,  67  Cal. 
493,  8  P.  29. 

Whether  a  certain  ditch  is  an  appurtenance  to  land  conveyed 
by  deed  may  be  proved  by  parol  evidence. — Fayter  v.  North, 
30  Utah  156,  6  L.  R.  A.  (N.  S.)  410,  83  P.  742. 

It  has  become  a  rule  of  property  in  Montana  that  "a  water 
right  is  appurtenant  to  the  land  upon  which  it  is  used." — Leg- 


240  DITCHES  AND  WATER. 

gat  v.  Carroll,  30  Mont.  384,  76  P.  806.  A  patent  does  not 
divest  ditch  rights. — Dodge  v.  Harden,  1  Or.  456,  1  M.  R.  63. 
The  right  granted  under  the  A.  C.  1866  was  not  confined  to 
ditches  then  in  existence. — Jacob  v.  Lorenz,  98  Cal.  332, 
33  P.  119. 

A  Ditch  May  Be  Abandoned  Without  Necessarily  Abandon- 
ing the  water  which  it  carried. — New  Mercer  Co.  v.  Arm- 
strong, 21  Colo.  357,  40  P.  989.  Non-user  of  ditch  does  not 
necessarily  amount  to  abandonment. — Welch  v.  Garrett,  51  P. 
405,  5  Ida.  639, 19  M.  R.  193. 

Buyer  Must  Take  Notice  of. 

A  ditch  is  a  physical  and  visible  monument,  and  doubtless 
the  grantee  of  land  crossed  by  a  ditch  buys  with  presumptive 
notice  of  its  existence. — Oregon  Co.  v.  Trullenger,  3  Or.  1, 
4  M.  R.  247 ;  Lampman  v.  Milks,  21  N.  Y.  505. 

Relation. 

When  a  ditch  is  made  for  the  appropriation  of  water,  the 
right  relates  back  to  the  commencement  of  the  work  on  the 
ditch,  if  the  same  be  completed  within  a  reasonable  time. 
—Maeris  v.  Bicknell,  1  Cal.  262,  68  Am.  Dec.  357, 1  M.  R.  601; 
Irwin  v.  Strait,  18  Nev.  436,  4  P.  1215. 

But  if  the  ditch  be  not  completed  with  due  diligence,  the 
right  only  accrues  from  the  time  the  water  is  actually  appro- 
priated.— Ophir  Co.  v.  Carpenter,  4  Nev.  534,  97  Am.  Dec.  550, 
4  M.  R.  640.  Facts  stated  and  held  to  amount  to  due  diligence. 
—Oviatt  v.  Big  Four  Co.,  39  Or.  118,  65  P.  811;  Sand  Point 
Co.  v.  Pan  Handle  Co.,  83  P.  347,  11  Ida.  405.  And  the  ditch 
has  a  right  of  way  over  claims  located  across  its  line  after  work 
commenced,  but  before  completion. — Miocene  D.  Co.  v.  Jacob- 
sen,  146  F.  680,  77  C.  C.  A.  106. 

Until  claimant  of  water  is  in  a  position  to  use  the  water  he 
can  not  claim  damages  against  a  party  diverting  or  using  it. 
—Miles  v.  Butte  Co.,  3  Mont.  56,  79  ,P.  549. 


DITCHES  AND  WATER.  241 

In  Tlwrn'dyke  v.  Alaska  M.  Co.,  164  F.  657,  90  C.  C.  A.  473, 
the  district  rule  required  that  the  appropriates  of  water  must 
"work  diligently  and  uninterruptedly  to  completion."  On 
the  facts  the  ditch  owner  was  held  to  have  not  abandoned  his 
water  rights,  under  this  rule. 

One  who  takes  up  land  left  vacant  by  the  death  of  a  squatter 
who  had  no  heirs,  does  not  succeed  to  the  water  rights  appro- 
priated by  the  squatter.— Head  v.  Hale,  38  Mont.  302,  100 
P.  222. 

Surplus  Water. 

Ditch  owner  must  return  surplus. — Stanford  v.  Felt,  71  Cal. 
249,  16  P.  900.  After  user  by  placer  miner  it  must  be  let  go 
to  claims  below.— Alder  Gulch  Co.  v.  Hayes,  6  Mont.  31,  9  P. 
581.  Waste  water  defined.— Byrne  v.  Crafts,  73  Cal.  641, 
15  P.  300. 

The  flowage  of  water  from  a  tunnel  is  a  subject  for  appro- 
priation, and,  where  a  party  appropriated  water  from  a  tunnel, 
which  was  afterwards  undercut  by  a  lower  tunnel,  the  water 
of  which  it  also  appropriated,  its  right,  by  relation,  went  back 
to  the  original  appropriation. — Ripley  v.  Park  Center  Co., 
40  Colo.  129,  90  P.  75.  But  such  appropriation  does  not 
impose  any  obligation  on  the  tunnel  owner. — Cardelli  v.  Gain- 
stock  Co.,  26  Nev.  284,  21  M.  R.  699,  66  P.  950 ;  the  same  as  to 
water  from  the  sluice  of  a  placer  claim  and  tapped  on  the 
owner's  ground  by  his  license. — F  airplay  Co.  v.  Weston,  67  P. 
160,  29  Colo.  125,  21  M.  R.  725. 

Water  flowing  from  an  abandoned  artesian  well  on  the 
public  domain  is  subject  to  appropriation. — De  Wolfskill  v. 
Smith,  5  Cal.  App.  175,  89  P.  1001. 

Parol  License  to  Construct. 

Where  a  ditch  is  constructed  on  government  land  or  over  the 
land  of  persons  who  give  their  consent,  no  condemnation  pro- 
ceedings are  necessary;  the  ditch  once  constructed  becomes  a 
lawful  easement ;  or  the  consent  may  be  treated  as  giving  title 


242  DITCHES  AND  WATER. 

by  estoppel.— Yunker  v.  Nichols,  8  M.  R.  64, 1  Colo.  551.  With 
or  without  the  aid  of  this  or  like  decisions  it  remains  clear  that 
a  ditch  over  the  public  land  requires  the  consent  of  no  person, 
the  federal  consent  being  given  by  law,  that  verbal  consent  is 
commonly  taken  as  sufficient  over  possessory  claims  and  that 
when  by  its  construction  it  becomes  a  fixed  easement,  even  the 
patented  title  recognizes  the  validity  of  the  title  to  such  ditch. 
—Tynon  v.  Despain,  22  Colo.  240,  43  P.  1039;  Stoner  v. 
Zucker,  148  Cal.  516,  113  Am.  St.  Rep.  301,  7  Ann.  Gas.  704, 
83  P.  808. 

The  term  "miner's  inch"  may  be  explained  by  parol  testi- 
mony. Ulrich  v.  Pateros  Co.,  67  Wash.  328,  121  P.  818.  See 
GLOSSARY. 

Condemnation  Where  Necessary. 

Where  it  is  to  be  built  across  claims  or  other  lands  whose 
owners  refuse  consent,  condemnation  proceedings  are  necessary 
under  the  Eminent  Domain  Acts,  notwithstanding  the  right  of 
way  granted  to  ditches  by  the  Act  of  1866.  (R.  S.  2339.)  A 
ditch,  when  carried  across  mining  claims  already  located,  must 
recognize  their  prior  possessory  rights  and  pay  damages  as  in 
other  cases  of  condemnation. — Titcomb  v.  Kirk,  51  Cal.  288, 
5  M.  R.  10;  Jennison  v.  Kirk,  98  U.  S.  453,  25  L.  Ed.  240, 
4  M.  R.  504;  Noteware  v.  Sterns,  1  Mont.  311,  4  M.  R.  650. 
It  seems  not  necessary  that  the  ditch  owners  should  incorporate 
to  condemn  a  right  of  way  for  ditches,  though  incorporation 
in  such  cases  is  usual  and  is  always  assumed  to  be  necessary 
in  the  absence  of  constitutional  provisions  dispensing  with  it, 
such  as  Sec.  7,  Art.  XVI,  Colorado  Constitution. 

The  flooding  of  land  by  a  reservoir  for  supply  of  power  to 
mines  and  smelters  and  for  irrigation  is  a  public  use. — Helena 
Power  Co.  v.  Spratt,  35  Mont.  108,  10  Ann.  Gas.  1055, 
88  P.  773. 

Where  a  ditch  was  constructed  without  objection  from  the 
owners  of  the  mining  claims  it  crossed,  but  without  condemna- 
tion proceedings,  an  attempt  by  the  mine  owners  to  destroy 
the  ditch  will  be  enjoined.  The  mine  claimants  are  entitled  to 


EIGHT  OF  WAY  AND  OTHER  EASEMENTS.  243 

damages  only. — Miocene  D.  Co.  v.  Jacobsen,  146  P.  680,  77 
C.  C.  A.  106. 

Irrigation  Ditches  Are  Granted  the  Same  Rights  of  Way  and 

the  same  right  to  appropriate  water  as  ditches  for  mining 
purposes  under  section  2339  above  printed.  Neither  has  any 
class  priority  over  the  other. — Union  Co.  v.  Dangberg,  81  F.  73. 
The  first  in  time  is  first  in  right.  They  may  in  general  be 
located  and  recorded  in  the  same  form  as  a  mining  ditch, 
except  when  otherwise  regulated  by  statute. 

The  Colorado  Act  applies  to  reservoirs  and  ditches  for  any 
beneficial  use  and  for  the  enlarging  of  the  same.  The  form  on 
page  236  is  sufficient  for  an  irrigating  ditch  by  changing  the 
purpose  of  the  use. 

Contract  to  enlarge  a  ditch  so  that  it  would  be  filled  from  a 
certain  river  construed  to  mean  to  make  a  ditch  of  a  certain 
capacity  and  not  a  guaranty  that  the  water  would  be  there  to 
fill  it.— Flick  v.  Halm's  Peak  Co.,  16  Colo.  App.  485,  66  P.  453. 

A  party  contracting  to  supply  water  to  a  placer  mine  must 
furnish  water  fit  for  the  purpose,  and  if  the  water  furnished 
has  come  from  a  placer  above,  the  duty  is  upon  him  to  provide 
the  necessary  reservoirs  to  settle  it. — Gold  Ridge  Co.  v.  Tall- 
madge,  44  Or.  34,  102  Am.  St.  Rep.  602,  74  P.  325. 

Using  sHch  water  as  furnished  was  no  waiver  of  damages  for 
its  defects. — Id. 

For  form  of  incorporation  of  ditch  company  see  p.  402. 


RIGHT  OF  WAY  AND  OTHER  EASEMENTS. 


State  Power  to  Regulate  Easements. 

B.  S.  Sec.  2338. — As  a  condition  of  sale,  in  the  absence  of  necessary 
legislation  by  Congress,  the  local  legislature  of  any  State  or  Territory 
may  provide  rules  for  working  mines,  involving  easements,  drainage,  and 
other  necessary  means  to  their  complete  development;  and  those  con- 
ditions shall  be  fully  expressed  in  the  patent. — Sec.  5,  A.  C.  July  S6,  1866. 


244  EIGHT  OF  WAY  AND  OTHER  EASEMENTS. 

Highways. 

R.  S.  Sec.  2477. — The  right  of  way  for  the  construction  of  highways 
over  public  lands,  not  reserved  for  public  uses,  is  hereby  granted. — Sec.  8, 
A.  C.  July  86,  1866. 

By  the  terms  of  the  above  section  2477,  roads  and  trails  may 
be  established  without  any  license  or  formality  over  the  public 
domain.— Hobart  v.  Ford,  15  M.  R.  236 ;  6  Nev.  77. 

By  a  very  early  statute  in  Colorado  all  claims  are  made  sub- 
ject to  the  right  of  way  for  hauling  quartz  (R.  S.  Sec.  4215), 
and  by  section  4216  parol  license  to  build  a  road  is  valid  with- 
out deed.  Where  such  statutes  do  not  exist  at  the  time  when 
a  location  is  made  the  estate  of  the  miner  in  his  claim  is 
exclusive  and  a  road  can  not  be  laid  across  it,  without  his 
acquiescence,  except  by  condemnation  under  the  Eminent 
Domain  Acts  with  compensation  in  damages. — Titcomb  v. 
Kirk,  5  M.  R.  10,  51  Cal.  288. 

Except  where  granted  by  the  above  section,  2477,  or  allowed 
by  State  statute  enacted  under  the  permission  of  section  2338 
(which  has  a  very  limited  scope)  the  title  to  an  easement  must 
be  created  by  deed  or  other  writing.  That  is  to  say,  it  is  within 
the  Statute  'of  Frauds.  It  is  true  an  easement  may  sometimes 
be  sustained  by  estoppel  or  as  an  executed  license,  but  if  a 
good  title  is  sought  at  the  outstart  it  should  be  secured  in 
writing  in  every  instance. — Highland  Boy  Co.  v.  "Strickley, 
116  F.  852,  54  C.  C.  A.  186. 

Where  a  claim  over  which  an  easement  exists  is  abandoned 
the  rights  of  the  holder  of  the  easement  are  paramount  to  those 
of  a  relocator  of  the  same  land. — Banner  v.  Rio  Grande  8.  R. 
Co.,  31  Colo.  446,  72  P.  1065;  Tuolumne  Co.  v.  Maier,  134  Cal. 
583,  66  P.  863,  21  M.  R.  678. 

A  Mineral  Patent  Does  Not  Divest  a  Valid  Highway  Already 

on  the  ground  when  patent  was  applied  for.  And  when  con- 
strued in  connection  with  the  Act  of  Congress  and  the  power 
of  the  State  to  regulate  easements  it  would  seem  that  the 
patent  would  be  subject  to  any  valid  subsisting  easement 


EIGHT  OF  WAY  AND  OTHEK  EASEMENTS.  245 

affecting  the  ground  prior  to  the  application.  Such  an  ease- 
ment saves  itself  and  needs  not  to  be  protected  by  filing  an 
adverse  claim.— Rockwell  v.  Graham,  9  Colo.  36,  10  P.  284, 
15  M.  R.  299 ;  Jacob  v.  Day,  111  Cal.  571,  44  P.  243. 

Deed  in  general  terms  giving  right  of  way  to  a  mining  com- 
pany to  get  mineral  construed  to  authorize  a  tramway  and 
also  the  right  to  change  the  line  of  the  tramway. — Duncan  v. 
American  Co.,  30  Ky.  Law  Rep.  84,  97  S.  W.  392. 

Annual  Labor. 

The  building  of  trails  or  roads  for  the  benefit  of  a  claim 
counts  as  annual  labor  or  towards  making  up  the  $500  improve- 
ments required  before  patenting.  See  page  121. 

One  Tenant  in  Common  Can  Not  by  His  Deed  or  License 

create  an  easement  over  the  common  claim  in  favor  of  a 
stranger.— Pfeiffer  v.  University,  74  Cal.  156,  15  P.  622.  Nor 
has  the  general  manager  of-  a  mine  power  to  grant  an  ease- 
ment.— B utte  Co.  v.  Montana  Co.  (Mont.),  55  P.  112. 

A  co-tenant  has  no  right  to  use  a  drift  on  the  vein  as  a 
tunnel  to  convey  ore  from  outside  property  owned  by  himself 
alone.— Laesch  v.  Morton,  38  Colo.  171,  120  Am.  St.  Rep.  106, 
87  P.  1081,  52  Colo.  541,  125  P.  498.  Nor  to  maintain  a  pipe 
line  across  the  common  ground  for  any  purpose  other  than  the 
mining  of  it.— Pioneer  Co.  v.  ShamUin,  37  So.  391,  140 
Ala.  486. 

Congressional  Grant  of  Easements. 

By  various  Acts  of  Congress  the  right  of  way  over  the  public 
domain  is  given  to  tramways,  canals,  ditches  and  lines  for 
distribution  of  electric  power,  with  provisions  for  reservoirs 
and  power  sites.  The  departmental  regulations  concerning 
the  same  are  scattered,  and  necessarily  so,  on  account  of  the 
overlapping  and  conflicting  acts  which  grant  them.  We  refer 
to  the  later  rulings,  as  follows : 


246  BIGHT  OF  WAY  AND  OTHER  EASEMENTS. 

Ditches. 

Ditch  rights  under  Act  of  March  3,  1891,  26  Stat.  L.  1095, 
and  Act  of  May  11,  1898,  30  Stat.  L.  404,  are  considered  in 
42  L.  D.  Ill,  217,  562  and  595. 

Regulations  as  to  petition  for  ditch  rights  are  found  in 
41  L.  D.  13. 

No  company  will  be  recognized  as  an  applicant  for  ditch 
rights  until  the  formal  presentation  of  an  application  for  a 
specific  right  of  way.  40  L.  D.  125. 

Want  of  diligence  forfeits  reservoir  and  other  irrigation 
rights.  38  L.  D.  175,  39  L.  D.  27,  309. 

Government  may  appropriate  water  and  cut  out  later  asser- 
tions of  right  to  the  same.  39  L.  D.  334. 

Practice  of  the  Department  where  water  rights  are  disputed 
by  rival  applicants.  37  L.  D.  152. 

Pipe  Lines. 

Rights  of  way  to  pipe  lines  are  considered  in  41  L.  D.  138 
and  43  L.  D.  110. 

Power  Sites,  Telephones,  Telegraphs. 

Regulations  on  petitions  for  power  lines,  telegraph  and  tele- 
phone lines  are  found  in  40  L.  D.  30,  41  L.  D.  150,  454,  532, 
and  42  L.  D.  465.  Power  sites,  rules  and  decisions  concerning. 
39  L.  D.  209.  In  41  L.  D.  532,  amended,  42  L.  D.  348  are  found 
detailed  regulations  concerning  applications  for  power  sites. 
(See  also  42  L.  D.  562.) 

Rental  charge  on  electrical  transmission  lines  changing  regu- 
lation 8  as  found  in  41  L.  D.  454.  44  L.  D.  335. 

Forest  Reserves. 

Rights  of  way  over  forest  reserves  are  considered  in  43 
L.  D.  448. 

The  approval  of  an  easement  within  a  forest  reserve  is  only 
advisory  to  the  Secretary  of  the  Interior  and  does  not  oust  his 
jurisdiction  as  to  the  title.  40  L.  D.  380. 


EIGHT  OF  WAY  AND  OTHEK  EASEMENTS.  247 

The  right  of  way  act  of  February  1,  1905,  33  Stat.  L.  628, 
concerning  ditches  and  other  easements  is  operative  within  the 
forest  reserves  in  Alaska.  40  L.  D.  426. 

Easements  in  General. 

R.  S.  Sec.  2338  as  to  easements  created  by  State  laws  is 
printed  on  page  243,  and  E.  S.  Sec.  2339  confined  to  water 
rights  on  page  233. 

In  36  L.  D.  567-591  is  found  a  recapitulation  of  rules  and 
practice  concerning  all  kinds  of  easements,  "with  forms. 

Protest,  Forfeiture. 

Rules  for  practice  in  cases  of  protest  against  power  applica- 
tions are  found  in  41  L.  D.  590. 

Regulation  of  proceedings  by  the  United  States  to  forfeit 
rights  of  way.  39  L.  D.  480. 

If  a  contested  land  entry  has  been  set  aside  by  judicial 
decision  and  the  title  restored  to  the  government,  no  applica- 
tion will  be  received  on  the  same  until  it  has  been  noted  on  the 
Land  Office  records.  38  L.  D.  597. 

After  the  five  year  period  in  the  Act  of  March  3,  1891,  26 
Stat.  L.  1095,  and  Act  of  May  11, 1898,  30  Stat.  L.  404,  judicial 
proceedings  must  be  taken  to  forfeit  the  right.  38  L.  D.  207. 

Procedure  of  Department  on  protest  against  oil  applications 
is  found  in  44  L.  D.  420. 

Reservations  in  Patents. 

The  reference  in  the  patent  to  the  reservation  of  easements 
is  considered  in  40  L.  D.  28  and  44  L.  D.  412. 

By  A.  C.  May  21,  1896,  29  St.  L.  127,  oil  pipe  lines  in  Colo- 
rado and  Wyoming  are  given  free  right  of  way  over  public 
land. 

For  right  of  way  over  national  forest  a  special  permit 
must  be  secured.  43  L.  D.  448. 


248  RIGHT  OF  WAY  AND  OTHER  EASEMENTS. 

Interstate  Commerce. 

Void  Pipe  Line  Act  of  Oklahoma. — To  forbid  the  doing  of 
acts  in  themselves  harmless  and  which  are  absolutely  essential 
to  the  enjoyment  of  property  amounts  to  confiscation.  Haskcll 
v.  Cowham,  187  F.  403,  109  C.  C.  A.  235 ;  Oklahoma  v.  Kansas 
Co.,  221  U.  S.  230,  35  L.  R.  A.  (N.  S.)  1193,  55  L.  Ed.  716, 
31  Sup.  Ct.  Rep.  221. 

Pipe  lines  are  common  carriers.  Prairie  Oil  Co.  v.  U.  S., 
204  F.  798. 

Eminent  Domain. 
Acts  to  condemn  ditches  are  found  in  all  the  arid  States. 

By  Colorado  Act  of  1907,  R.  S.  2438,  an  aerial  tramway,  or 
pipe  line  for  public  use,  is  allowed  to  condemn  its  right  of  way. 
The  validity  of  such  statutes  depends  upon  whether  mining 
is  a  public  use;  for,  if  not  a  public  use,  the  statute  is  void. 
The  tendency  of  the  decisions  is  to  sustain  them. — Clark  v. 
Nash,  198  U.  S.  361,  4  Ann.  Gas.  1171,  49  L.  Ed.  1085,  25 
Sup.  Ct.  Rep.  676.  A  private  tramway  may  not  be  condemned. 
—People  v.  Dist.  Ct.,  11  Colo.  147, 17  P.  302. 

It  has  been  held  a  public  use  in  Nevada. — Dayton  H.  Co.  v. 
Seawell,  11  Nev.  394,  5  M.  R.  424;  Byrnes  v.  Douglass,  19  M.  R. 
96,  83  F.  45,  27  C.  C.  A.  399.  And  in  Utah,  Highland  Boy  Co. 
v.  Strickley,  28  Utah  215,  107  Am.  St.  Rep.  711,  3  Ann.  Cas. 
1110,  1  L.  R.  A.  (N.  S.)  976,  78  P.  296.  And  in  Montana, 
Helena  Power  Co.  v.  Spratt,  35  Mont.  108,  8  L.  R.  A.  (N.  S.) 
567,  88  P.  773.  In  Byrnes  v.  Douglass  a  tunnel  was  condemned. 

But  otherwise  in  California;  Cons.  Channel  Co.  v.  C.  P.  R. 
Co.,  51  Cal.  269,  5  M.  R.  438 ;  Amador  M.  Co.  v.  Dewitt,  73  Cal. 
482, 15  P.  74;  Butter  County  v.  Nicols,  93  P.  872,  152  Cal.  688, 
15  L.  R.  A.  (N.  S.)  616. 

Ground  for  deposit  of  tailings  may  be  condemned.  Goldfield 
Co.  v.  Old  Co.,  38  Nev.  426,  150  P.  313.  A  railroad  to  a  mine 
is  a  public  use.  Eipp  v.  Davis  Daly  Co.,  41  Mont.-  509,  36 
L.  R.  A.  (N.  S.)  666,  110  P.  237.  A  pipe  line  to  carry  oil  or 


t  DUMP.  249 

natural   gas  may  be  condemned  as  a  public  use.     City  of 
LaHarpe  v.  Elm  Co.,  69  Kan.  97,  76  P.  448. 

A  distinction  has  been  made  where  the  easement  is  intended 
only  for  the  private  benefit  of  the  condemnor  and  where 
intended  to  supply  the  public  generally,  being  allowed  in  the 
latter  instance  and  denied  in  the  former. — Great  Western  Co. 
v.  Hawkins,  30  Ind.  App.  557,  66  N.  E.  765 ;  Miocene  D.  Co.  v. 
Lyng,  138  F.  544,  70  C.  C.  A.  458. 

Provision  for  condemnation  by  electric  power  companies 
and  by  mines  seeking  to  connect  with  railroads  is  found  in  the 
Colorado  R.  S.,  Sees.  2459,  2460.  Any  mine  owner  may  con- 
demn land  to  connect  with  a  railroad.  Sec.  2464. 

The  measure  of  damages  where  a  quarry  is  condemned  is  the 
value  of  the  stone  in  place.— Cole  v.  Ellwood  Co.,  65  Atl.  678, 
216  Pa.  283. 

Right  of  Way  to  Tunnel. 

See  TUNNEL  SITE. 


DUMP. 

•  

The  Right  to  Dump  Is  But  Little  If  At  All  Affected  by 

statutory  regulations,  and  the  right  to  dump,  as  of  necessity  or 
by  custom,  across  lower  claims,  has  never  been  brought  under 
the  adjudication  of  the  Court  of  last  resort  in  any  of  the 
mining  States,  to  the  writer's  knowledge;  but  in  the  case  of 
Equator  Co.  v.  Marshall  Co.,  U.  S.  C.  Ct.  Colorado,  an  action 
brought  to  restrain  the  dumping  across  a  claim  lying  below  on 
the  mountain  slope,  it  was  lield,  as  of  course,  that  it  was  no 
case  for  injunction,  unless  where  work  was  being  prevented, 
shafts  filled,  life  endangered  or  other  gross  and  continuing 
injury,  and  the  remedy,  if  any,  was  by  action  at  law  for 
damages. 


250  DUMP. 

In  a  later  suit  in  the  same  Court  between  the  same  parties  it 
was  held  that  when  continuous  dumping  had  been  carried  on 
by  owners  and  lessees,  without  proof  or  attempt  at  proof,  as 
to  the  injury  done  by  each  party,  that  only  nominal  damages 
could  be  recovered  against  an  owner,  and  that  the  owners  were 
not  responsible  for  the  injuries  done  by  their  lessees ;  and  there 
being  no  proof  that  the  defendant,  one  of  the  owners,  had  ever 
taken  an  active  part  in  the  management  of  the  mine,  the  jury 
found  for  the  defendant. — See  also  Little  Schuylkill  Co.  v. 
Richards,  10  M.  R.  661,  57  Pa.  142,  98  Am.  Dec.  209. 

In  the  case  of  continuous  and  indiscriminate  dumping  over 
lower  claims  it  may,  if  not  in  the  meanwhile  regulated  by 
statute,  be  finally  recognized  as  a  controlling  custom  and  so 
fixed  as  a  permanent  easement  on  the  lower  claims. 

In  the  case  of  careless  or  wanton  injury  to  improvements 
the  upper  claim  is,  of  course,  liable ;  but  the  right  to  dump  over 
unimproved  and  valueless  surface  ground  is  doubtless  such 
an  easement  as  may  be  prescribed  by  State  statute  under  the 
permission  of  R.  S.  Sec.  2338,  ante  p.  243,  or  allowed  by  dis- 
trict rule. 

The  owner  of  a  gypsum  bed  can  not  make  his  neighbors' 
land  a  convenience  to  dump  his  waste  on. — White  v.  Lansing, 
119  App.  Div.  584,  103  N.  Y.  Supp.  1040;  and  having  covered 
up  an  acre  of  such  ground  defendant  was  decreed  to  remove  it 
or  pay  damages  at  plaintiff's  election.  But  the  damages  in 
cases  when  the  cost  of  removal  would  exceed  the  value  of  the 
land  can  not  exceed  the  amount  of  such  value. — Harvey  v. 
Sides  M.  Co.,  1  Nev.  539,  90  Am.  Dec.  510,  10  M.  R.  107. 

A  Dump  Is  Real  Estate  and  Passes  to  the  Grantee  Without 

special  mention.  Savage  v.  Nixon,  209  F.  122;  Steinfeld  v. 
Omega  Co.,  16  Ariz.  230, 141  P.  847.  But  a  contract  to  sell  the 
ore  found  in  it  need  not  necessarily  be  by  deed. — Smart  v. 
Jones,  15  Com.  Bench,  N.  S.,  717 ;  Hanson  v.  Dayton,  153  F. 
258,  82  C.  C.  A.  588. 

A  dump  of  slag  is  real  estate,  but  may  be  treated  by  the 
owner  as  personalty  and  sold  and  delivered  as  such. — Hanson 


DUMP.  251 

v.  Dayton,  153  F.  258,  82  C.  C.  A.  588.  Dump  deposited  on 
the  land  of  another  and  allowed  to  remain  indefinitely  becomes 
parcel  of  the  land. — Lacustrine  Co.  v.  Lake  Guano  Co.,  82 
N.  Y.  476;  Erwin's  App.,  12  Atl.  149,  16  M.  R.  91.  A  deposit 
of  tailings  becomes  an  accretion  to  the  land. — Rogers  v. 
Cooney,  14  M.  R.  85,  7  Nev.  213. 

Under  a  mining  lease  in  general  terms  the  lessee  has  the 
right  to  work  over  the  dump,  but  the  wording  of  the  lease  may 
be  such  as  to  exclude  dumps  by  construction. — Boileau  v. 
Heath,  L.  R,  (1898),  2  Ch.  301;  Genett  v.  Delaware  Co.,  14 
App.  Div.  177,  43  N.  Y.  Supp.  589, 122  N.  Y.  505,  25  N.  E.  922. 

•  The  right  to  dump  may  be  lost  by  allowing  adverse  posses- 
sion of  the  ground  for  the  statutory  period. — McLaughlin  v. 
Del  Re,  71  Cal.  230,  16  P.  881.  Ejectment  lies  to  recover 
ground  used  for  tailings. — Campbell  v.  Silver  Bow  Co.,  49  F. 
47,  1  C.  C.  A.  155. 

The  lessee  has  no  property  in  the  dump  after  his  term  has 
expired ;  nor,  during  term,  to  minerals  not  contemplated  in  his 
lease.— Erwin's  App.,  16  M.  R.  91,  12  Atl.  149;  Doster  v. 
Friedensville  Co.,  21  Atl.  251,  140  Pa.  147. 

Construction  of  contract  to  work  dump. — Foster  v.  Lum- 
bermen's Co.,  36  N.  W.  171,  68  Mich.  188. 

Appurtenance. 

It  has  been  held  that  the  grant  of  a  tunnel  right  carries  with 
it  as  an  appurtenance  the  right  to  dump  on  the  grantor's  land 
at  the  mouth  of  the  tunnel. — Scheel  v.  Alhambra  Co.,  79  F. 
821,  18  M.  R,  616;  Himrod  v.  Ft.  Pitt  Co.,  220  F.  80,  135 
C.  C.  A.  648. 

Dump  rights  and  the  easement  of  the  right  to  work  through 
adjoining  ground  are  appurtenances  which  pass  on  foreclosure 
of  a  mechanic's  lien. — Park  County  v.  Comstock  Co.,  36  Utah 
145,  103  P.  254. 


252  MINERAL  LAND. 

MINERAL  LAND. 

Contests  With  Non-Mineral  Claims. 

The  question:  What  is  mineral  land?  arises  in  contests 
between  mineral  and  agricultural  claimants,  between  mill  site 
and  lode  claimants,  in  timber  cutting  cases,  indirectly  in  con- 
tests as  to  the  exception  of  known  lodes  from  placers  and  in 
other  instances.  Where  it  is  the  duty  of  the  land  department 
to  decide  this  point  before  they  issue  patent  their  decision  is 
final.— Gale  v.  Best,  78  Cal.  235, 12  Am.  St.  Rep.  44,  20  P.  550, 
17  M.  R.  186 ;  Traapliagen  v.  Kirk,  30  Mont.  562,  77  P.  58 ; 
Paterson  v.  Ogden,  141  Cal.  43,  99  Am.  St.  Rep.  31,  74  P.  443, 
34  L.  D.  401. 

Title  to  known  mineral  land  can  not  lawfully  be  procured 
by  agricultural  entry. — Murray  v.  White,  42  Mont.  423,  Ann. 
Cas.  1912A,  1297, 113  P.  755. 

Lands  containing  minerals  of  sufficient  value  to  warrant 
expenditure  are  disposable  only  under  the"  mining  laws, 
although  they  may  possess  a  possibly  greater  value  for  other 
purposes.  43  L.  D.  248. 

The  Surveyor  General's  return  cuts  but  little  figure  in  a 
mineral  or  non-mineral  contest.  39  L.  D.  491 ;  45  L.  D.  25. 

Evidence  that  land  in  the  vicinity  is  mineral  is  admissible 
as  proof  of  the  mineral  character  of  the  land  in  controversy. 
—U.  8.  v.  Rossi,  133  F.  380,  66  C.  C.  A.  442. 

On  the  other  hand  it  is  held  that  a  man  may  enter  land  as 
agricultural  where  no  oil  has  been  actually  discovered  on  the 
tract  although  oil  is  found  in  the  neighborhood  and  the  entry- 
man  selected  it  for  its  supposed  mineral  values. — Olive  Co.  v. 
Olmstead,  20  M.  R.  700,  103  F.  568;  Bay  v.  Oklahoma  Co., 
13  Okla.  425,  73  P.  936. 

The  subsequent  discovery  of  mineral  after  a  vested  right  in 
a  non- mineral  location  does  not  invalidate  the  location. — 
Cleary  v.  Skiffich,  28  Colo.  362,  89  Am.  St.  Rep.  207,  21  M.  R. 
2G4,  65  P.  59.  Discovery  of  coal  after  entry  will  not  defeat  the 


MINERAL  LAND.  253 

issue  of  his  patent  to  a  homestead  claimant. — 21  L.  D.  92; 
Colo.  Co.  v.  U.  8.,  123  U.  S.  308,  31  L.  Ed.  182,  8  Sup.  Ct.  Rep. 
131.  The  test  in  agricultural  contests  is  one  of  comparative 
values.— Hunt  v.  Steese,  75  Gal.  621,  17  P.  920.  A  discovery 
justifying  further  exploration  makes  the  land  mineral. — 19 
L.  D.  455. 

Discovery  of  colors  and  fairly  good  prospects  is  not  enough 
to  establish  the  mineral  character  of  land  as  against  a  prior 
homestead  entry.— Steele  v.  Tanana  Mines,  148  F.  678,  78 
C.  C.  A.  412. 

It  is  not  necessary  that  immediate  profitable  mining  could  be 
carried  on  to  make  the  premises  mineral  land. — Madison  v. 
Octave  Oil  Co.,  99  P.  176,  154  Cal.  768. 

The  mineral  value  of  the  land,  to  defeat  an  agricultural 
entry,  must  be  substantial.  Abandoned  works  are  not  enough. 
—U.  S.  v.  Blackburn,  5  Ariz.  162,  48  P.  904. 

Pumice  deposit  is  mineral  land.    41  L.  D.  584. 

Ordinary  clay  or  limestone  of  no  special  value  does  not 
make  the  land  mineral.  41  L.  D.  314.  The  same  as  to  rock  of 
no  pecuniary  value.  41  L.  D.  655. 

Sand  and  gravel  are  not  minerals  in  a  homestead  contest. 
39  L.  D.  310. 

Value  for  gypsum  makes  the  land  mineral.  29  L.  D.  181; 
27  L.  D.  57.  Madison  v.  Octave  Oil  Co.,  supra. 

The  department  in  a  circular  letter,  dated  Nov.  30,  1908, 
concerning  the  Timber  and  Stone  Act,  gave  a  formal  definition 
of  non-mineral  lands  as  follows : 

Non-mineral  lands  are  such  lands  as  are  not  known  to  contain  any 
substance  recognized  and  classed  by  standard  authorities  as  mineral,  in 
such  quantities  and  of  such  qualities  as  would,  with  reasonable  prospects 
of  success  in  developing  a  paying  mine  thereon,  induce  a  person  of 
ordinary  prudence  to  expend  the  time  and  money  necessary  to  such  devel- 
opment.—37  L.  D.  290. 


254  MINERAL  LAND. 

Coal  Lands. 

Coal  lands  are  "mineral  lands"  as  that  term  is  generally 
used  in  the  disposal  of  the  public  domain. — U.  S.  v.  N.  Pac. 
Ry.,  170  U.  S.  498. 

Phosphates. 

Phosphate  land  is  mineral  land  and  as  such  excepted  from 
railroad  grants.  26  L.  D.  600.  And  phosphate  is  such  mineral 
value  as  will  suffice  to  cancel  a  homestead  entry.  18  L.  D.  58. 

Jurisdiction  to  Determine. 

The  Department  retains  jurisdiction  to  inquire  into  the  min- 
eral character  of  land  until  patent  issues.  41  L.  D.  520. 

The  ruling  of  the  Land  Department  in  a  contest  that  the 
land  is  non-mineral,  in  the  absence  of  fraud  or  mistake,  is 
binding  on  the  Courts  and  not  subject  to  collateral  attack. 
— Old  Dominion  Co.  v.  Haverly,  11  Ariz.  241,  90  P.  333; 
Le  Feme  v.  Amonson,  11  Ida.  45,  81  P.  71. 

Where  fraud  is  alleged  it  must  be  extrinsic  to  the  issue 
passed  upon  by  the  Department. — Cragie  v.  Roberts,  6  Cal. 
App.  309,  92  P.  97. 

A  court  has  no  jurisdiction  to  restrain  the  officers  of  the 
Land  Department  in  their  proceedings  to  ascertain  the  mineral 
character  of  land,  although  the  same  be  held  by  plaintiff  under 
the  mining  act. — Cameron  v.  Weedin,  226  F.  44. 

It  is  the  province  of  the  Land  Department  to  determine 
what  land  is  mineral  and  what  is  non-mineral. — Cosmos  Co.  v. 
Gray  Eagle  Co.,  190  U.  S.  301,  47  L.  Ed.  1064,  23  Sup.  Ct.  Rep. 
692 ;  Wright  v.  Hartville,  13  Wyo.  497,  81  P.  649,  82  P.  450 ; 
Nevada  Co.  v.  Spriggs,  41  Utah  171, 124  P.  770. 

But  in  a  contest  between  a  lode  and  a  placer,  the  Court 
must  necessarily  decide  to  which  class  the  ground  belongs. 
—Duffield  v.  S.  F.  C.  Co.,  205  F.  481,  123  C.  C.  A.  548.  And 
the  Court  can  relieve  against  a  manifest  mistake  of  law  by  the 
Land  Office.— West  v.  Timber  Co.,  210  F.  189. 


MINERAL  LAND.  255 

Severed  Title  in  United  States. 

By  A.  C.  of  July  17,  1914,  provision  is  made  to  allow  agri- 
cultural entry  of  lands  withdrawn  as  *  phosphate,  nitrate, 
potash,  oil,  gas  or  asphalt,  with  a  reservation  of  the  title  of  the 
United  States  to  such  minerals.  38  St.  L.  509. 

Such  lands  may  be  prospected  upon  giving  bond  to  protect 
the  agricultural  claimant,  and  there  are  sundry  provisions 
naturally  incident  to  this  novel  idea  of  partnership  in  the 
title  to  the  public  lands. 

Where  the  patent  itself  contains  a  mineral  reservation  it  is 
not  conclusive  evidence  that  the  land  is  non-mineral. — Eastern 
Co.  v.  Willow  River  Co.,  187  F.  466. 

Mines  and  Quarries  at  Common  Law. 

The  term  "mine"  is  generally  applied  to  an  excavation  for 
mineral  which  enters  cover  as  distinguished  from  a  "quarry" 
which  is  supposed  to  be  a  working  for  the  removal,  of  rock, 
layer  by  layer,  from  the  surface  down  without  getting  under 
roof.  But  this  distinction  is  not  universal ;  for,  under  certain 
systems  of  working  and  in  certain  formations,  even  a  fissure 
vein  may  be  exploited  by  a  continuous  open  trench,  and  there 
are  excavations  for  the  extraction  of  slate  which  are  subterra- 
nean. It  is  also  obvious  that  a  placer  working  is  as  much  a 
mine  as  a  lode  mine  and  such  workings  are  always  open, 
barring  the  method  of  placer  mining  known  as  ' '  drifting. ' ' 

An  exhaustive  history  of  the  etymology  of  these  words  as 
well  as  the  legal  distinctions  between  them  is  found  in  the 
first  chapter  of  "MacSwinney,"  the  leading  English  authority 
on  mining  law,  and  Mr.  Costigan  in  his  excellent  "Handbook 
on  American  Mining  Law"  explains  with  great  clearness  the 
meaning  of  these  words  as  used  in  the  United  States,  and  their 
various  equivalents  or  alternative  forms,  as  "location," 
"claim,"  "prospect"  and  "valuable  mineral  deposit." 

The  generic  term  "mines"  is  not  confined  to  subterraneous 
excavations  nor  the  word  "minerals"  to  metallic  deposits. — 
Nephi  Co.  v.  Judb  County  (Utah),  93  P.  53. 


256  MINERAL  LAND. 

The  meaning  of  the  words  "fully  developed  mine"  is  dis- 
cussed in  People  v.  WJialen,  a  false  pretense  case,  98  P.  194, 
154  Cal.  472. 

In  Guffey  Pet.  Co.  v.  Murrel,  the  definitions  of  mine,  quarry 
and  ore  are  given  with  the  ruling  that  an  oil  well  is  not  a  mine. 
— 127  La.  466,  53  So.  705.  Drilling  for  oil  is  not  mining. 
—Kreps  v.  Brady,  37  Okla.  754,  47  L.  R.  A.  (N.  S.)  106,  133 
P.  216. 

Opened  and  New  Mines. 

At  common  law  everywhere  a  life  tenant  can  work  a  mine 
opened  and  worked  before  he  succeeded  to  the  life  estate,  but 
can  not  open  a  new  mine  nor  even  work  a  mine  which  had 
become  disused.  We  would  consider  claims  on  the  public 
domain  under  the  mining  acts,  whether  patented  or  only 
located,  to  be  opened  mines.  They  could  not  become  legal 
claims  until  worked  at  least  enough  to  disclose  the  vein  or 
placer  values.  The  annual  labor  requirement  and  the  essential 
$500  improvements  also  enforce  this  conclusion.  See  Seagar  v. 
McCabe,  92  Mich  186,  52  N.  W.  299,  16  L.  R.  A.  247;  Poole 
v.  Union  Co.,  (Mich.)  157  N.  W.  430. 

Minerals  Defined. 

The  cases  defining  what  is  a  mineral,  generally  arising  out  of 
the  construction  of  reservations  in  deeds,  uniformly  hold  that 
the  valuable  metals  and  coal  are  within  the  meaning  of  the 
word,  and  the  debatable  substances  have  been  the  various 
forms  of  clays,  stone,  gravel,  sand,  oil,  gas,  and  mineral  waters. 

The  best  definition  of  mineral  seems  to  be:  any  form  of 
earth,  rock  or  metal  of  greater  value  while  in  place  than  the 
enclosing  country  or  the  superficial  soil. 

McCombs  v.  Stephenson,  44  So.  867,  154  Ala.  109,  which 
adopted  this  definition,  is  a  case  in  which  the  authorities  are 
reviewed.  Hext  v.  GiU,  L.  R.  7  Ch.  App.  699,  17  M.  R.  1, 
construing  a  reserve  of  china  clay,  is  a  learned  English  case  on 
the  subject;  followed  by  Johnstone  v.  Crompton,  L.  R.  2  Ch. 
197  (1899). 


PLACERS.  257 

Meteorite — Fossils — Cave. 

A  meteorite  is  real  estate. — Oregon  Iron  Co.  v.  Hughes,  47 
Or.  313,  8  Ann.  Cas.  556,  81  P.  572 ;  Goddard  v.  Winchell,  86 
Iowa  71,  32  N.  W.  1124,  41  Am.  St.  Rep.  481,  17  L.  R.  A.  788. 
Fossils  of  dinosaurs  do  not  create  mineral  value. — 44  L.  D.  325. 
Nor  the  presence  of  a  cave  of  stalactites.— 30  L.  D.  357. 


PLACERS. 


Open  to  Location  and  Patent. 

R.  S.  Sec.  2329. — Claims  usually  called  "placers,"  including  all  forms 
of  deposit,  excepting  veins  of  quartz,  or  other  rock  in  place,  shall  be 
subject  to  entry  and  patent,  under  like  circumstances  and  conditions,  and 
upon  similar  proceedings,  as  are  provided  for  vein  or  lode  claims;  but 
where  the  lands  have  been  previously  surveyed  by  the  United  States,  the 
entry  in  its  exterior  limits  shall  conform  to  the  legal  subdivisions  of  the 
public  lands. — Sec.  12,  July  9,. 1870. 

Size  of  Claim — Legal  Subdivisions. 

R.  S.  Sec.  2330. — Legal  subdivisions  of  forty  acres  may  be  subdivided 
into  ten-acre  tracts;  and  two  or  more  persons,  or  associations  of  persons, 
having  contiguous  claims  of  any  size,  although  such  claims  may  be  less 
than  ten  acres  each,  may  make  joint  entry  thereof;  but  no  location  of  a 
placer-claim,  made  after  the  ninth  day  of  July,  eighteen  hundred  and 
seventy,  shall  exceed  one  hundred  and  sixty  acres  for  any  one  person  or 
association  of  persons,  which  location  shall  conform  to  the  United  States 
surveys;  and  nothing  in  this  section  contained  shall  defeat  or  impair  any 
bona  fide  pre-emption  or  homestead  claim  upon  agricultural  lands,  or 
authorize  the  sale  of  the  improvements  of  any  b<ma  fide  settler  to  any 
purchaser. — Id. 

Twenty  Acres  to  One  Locator. 

R.  S.  See.  2331. — Where  placer-claims  are  upon  surveyed  lands,  and 
conform  to  legal  subdivisions,  no  further  survey  or  plat  shall  be  required, 
and  all  placer-mining  claims  located  after  the  tenth  day  of  May,  eighteen 
hundred  and  seventy-two,  shall  conform  as  near  as  practicable  with  the 
United  States  system  of  public-land  surveys,  and  the  rectangular  subdi- 
visions of  such  surveys,  and  no  such  location  shall  include  more  than 
twenty  acres  for  each  individual  claimant;  but  where  placer-claims  can 


258  PLACERS. 

not  be  conformed  to  legal  subdivisions,  survey  and  plat  sliall  be  made  as 
on  unsurveyed  lands;  and  where  by  the  segregation  of  mineral  land  in 
any  legal  subdivision  a  quantity  of  agricultural  land  less  than  forty  acres 
remains,  such  fractional  portion  of  agricultural  land  may  be  entered  by 
any  party  qualified  by  law,  for  homestead  or  pre-emption  purposes. 
— Sec.  10,  May  10,  1872. 

Location  and  Certificate — Notice  and  Stakes. 

R.  S.  Colo.  See.  4205. — The  discoverer  of  a  placer  claim  shall,  within 
thirty  days  from  the  date  of  discovery,  record  his  claim  in  the  office  of- 
the  recorder  of  the  county  in  which  said  claim  is  situated,  by  a  location 
certificate,  which  shall  contain: 

First — The  name  of  the  claim,  designating  it  as  a  placer  claim; 

Second — The  name  of  the  locator; 

Third — The  date  of  location; 

Fourth — The  number  of  acres  or  feet  claimed;  and, 

Fifth — A  description  of  the  claim,  by  such  reference  to  natural  objects 
or  permanent  monuments  as  shall  identify  the  claim. 

Before  filing  such  location  certificate  the  discoverer  shall  locate  his 
claim : 

First — By  posting  upon  such  claim  a  plain  sign  or  notice,  containing 
the  name  of  the  claim,  the  name  of  the  locator,  the  date  of  discovery,  and 
the  number  of  acres  or  feet  claimed; 

Second — By  marking  the  surface  boundaries  with  substantial  posts, 
and  sunk  into  the  ground,  to-wit:  one  at  each  angle  of  the  claim. 
—March  IS,  1879. 

Legislation  Concerning  Placers. 

Placer  claims  were  not  covered  by  the  original  A.  C.  of  1866. 

The  Act  of  1870  brought  them  within  Congressional  recogni- 
tion and  made  them  open  to  patent. 

They  have  been  at  all  times  regulated  as  to  size,  labor,  mode 
of  location,  etc.,  by  the  district  rules  to  a  much  greater  extent 
than  lode  claims. 

Placer  Defined. 

As  commonly  and  properly  understood,  a  placer  claim  means 
a  location  in  which  gold  is  found  loose  in  sand  or  gravel  and 
not  in  the  vein  or  in  place ;  it  includes  gulch  claims,  old  chan- 
nels, cement  and  drift  diggings. 


PLACERS.  259 

Mining  Claims  Divided  Into  Lodes  and  Placers. 

But  the  U.  S.  Mining  Acts  make  an  arbitrary  division  of  all 
minerals  into  two  classes,  to-wit:  lodes  and  placers.  All  de- 
posits of  (metallic)  minerals  in  place  are  called,  when  located, 
lode  claims,  and  all  deposits  of  other  minerals  in  place  or  not 
in  place  are  placers.  An  old  channel  gravel  bed  though  hav- 
ing well  defined  enclosing  rocks  and  a  dip  or  pitch  is  a  placer 
and  not  a  lode.— Gregory  v.  Pershbaker,  15  M.  E.  602,  73  Cal. 
109,  14  P.  401. 

Distinction  Between  Lode  and  Placer. 

In  Webb  v.  American  Asphaltum  Co.,  157  F.  203,  84  C.  C.  A. 
651,  a  placer  location  had  been  made  on  a  string-shaped  injec- 
tion of  asphalt.  Later,  lode  locations  were  made  over  it.  The 
issue  turned  on  whether  it  was  lode  or  placer  ground.  The 
Court  held  that  the  issue  was  determined  by  the  form  of  tlie 
deposit  and  the  formation  being  fissure  like  and  in  place  it 
was  a  lode,  discarding  entirely  the  non-metallic  character  of 
the  mineral.  In  U.  S.  v.  Iron  S.  Co.,  128  U.  S.  679,  32  L.  Ed. 
571,  9  Sup.  Ct.  Rep.  195,  the  Supreme  Court  had  said:  "By 
'veins  or  lodes,'  as  here  used,  are  meant  lines  or  aggregations 
of  metal  embedded  in  quartz  or  other  rock  in  place.  The  terms 
are  found  together  in  the  statutes,  and  both  are  intended  to 
indicate  the  presence  of  metal  in  rock."  And  in  St.  Louis  Co. 
v.  Kemp,  104  U..S.  649,  26  L.  Ed.  875,  occurs  this  clause:  "A 
mining  claim  is  a  parcel  of  land  containing  precious  metal  in 
its  soil  or  rock."  But  in  neither  of  these  last  two  cases  was  the 
point  directly  involved  and  the  use  of  the  word  " metal"  is 
therefore  not  of  binding  force.  The  AspJudtum  Co.  case  is 
therefore  thus  far  the  authoritative  decision  on  this  important 
question,  and  we  so  print  it  with  the  qualification  that  it 
remains  for  the  ultimate  adjudication  of  the  Federal  Supreme 
Court  before  we  can  concede  that  it  is  a  correct  exposition  of 
the  law. 

A  phosphate  bed  in  place  with  well  defined  walls  is  a  lode, 
and  a  placer  location  can  not  be  made  upon  it. — Duffield  v. 
S.  F.  Co.,  205  F.  481,  123  C.  C.  A.  548. 


260  PLACERS. 

When  the  ground  was  locatahle  as  a  lode  claim  only,  a  placer 
location  is  void  and  a  later  lode  record  will  prevail  against 
it.— id 

Other  Non-Metalliferous  Deposits. 

Discarding  the  rare  cases  instanced  in  the  foregoing  para- 
graphs where  non-metallic  but  valuable  mineral  substances 
are  found  in  fissure  or  lode-like  formation,  the  uniform  prac- 
tice is  to  locate  them  as  placers  and  the  department  has  so 
ruled  as  to  many  specific  minerals. 

Citing  and  following  the  Asphaltum  case,  the  Land  Office 

held  that  a  deposit  of  onyx  in  fissure  form  in  place  was  a 

lode. — 38  L.  D.  504.    Same  ruling  as  to  phosphate  deposits.— 

41  L.  D.  403. 

.  Marble  may  be  located  upon  as  a  placer  claim. — 35  L.  D.  652. 

Deposits  of  borax,  soda,  sulphur,  alum  and  asphalt  are  valua- 
ble mineral  deposits  and  as  such  patentable  as  placers. — 25 
L.  D.  351. 

Land  containing  stone  suitable  for  making  lime  may  be 
entered  as  a  placer  claim. — 17  L.  D.  82.  Deposits  of  slate 
make  placer  ground. — 40  L.  D.  7.  The  same  as  to  fireclay  or 
kaolin.— 1  L.  D.  579,  Rev.  Ed.  565. 

Otherwise  as  to  clay  suitable  for  portland  cement. — 40  L.  D. 
620. 

A  granite  quarry  may  be  entered  as  a  placer. — 3  L.  D.  116 ; 
cited  42  L.  D.  147. 

The  department  held  in  Clark  v.  Erwin  that  a  placer  loca- 
tion made  to  cover  building  stone  is  not  validated  by  the  sub- 
sequent discovery  of  fireclay,  patentable  as  placer,  although 
the  original  record  did  not  confine  itself  to  any  particular 
kind  of  placer  deposit. — 17  L.  D.  550.  The  opinion  does  not 
give  any  substantial  reason  for  this  ruling. 

Building  sand  is  a  valuable  mineral  and  may  be  patented  as 
a  placer  claim.— Loney  v.  Scott,  57  Or.  378,  32  L.  R.  A.  (N.  S.) 
466,  112  P.  172. 


PLACERS.  261 

Withdrawn  Minerals. 

Recent  special  legislation  under  the  conservation  theory  of 
phosphate  rock,  nitrates,  potash  and  asphalt  is  referred  to 
under  the  "WITHDRAWAL  ACTS." 

Regulations  for  entry  of  phosphate,  nitrate,  potash,  oil,  gas 
or  asphalt  under  Act  of  July  17,  1914,  38  Stat.  L.  509,  are 
found  in  44  L.  D.  32. 

Placer  locations  on  phosphate  lands  under  Act  of  January 
11,  1915.  The  Act  validates  such  locations  prior  to  with- 
drawal.— 44  L.  D.  46. 

Oil  Lands. 

See  p.  665. 

Salines  Were  the  Subject  of  Congressional  Legislation 

for  many  years  prior  to  the  Mining  Acts  of  1866-72.  Under 
those  Acts  they  were  still  treated  as  neither  lode  nor  placer 
but  open  to  entry  under  special  statutes  until  1901,  when 
they  were  declared  to  be  placer  ground.  See  ACT,  p.  648. 

Quarries — Building  Stone. 

Land  "chiefly  valuable  for  building  stone"  may  be  located 
and  patented  as  a  placer  claim.  A.  C.  Aug.  4,  1892  (page  653). 
If  such  stone  is  found  on  unsurveyed  land  this  is  the  only  pro- 
cedure to  secure  title.  Under  the  department  rulings  any  stone 
of  special  commercial  value  is  held  to  be  placer  ground. — 15 
L.  D.  370, 16  Id.  508. 

Stone  land  can  not  be  located  or  patented  as  a  lode  claim. — 
23  L.  D.  353,  395;  Wheeler  v.  Smith,  5  Wash.  704,  32  P.  784. 

Stone— Timber." 

But  under  the  Timber  and  Stone  Acts  of  1878  and  1892  if 
on  a  surveyed  section  land  is  found  which  is  "valuable  chiefly 
for  stone"  it  may  be  filed  upon  and  title  obtained  by  procedure 


262  PLACERS. 

much  more  expeditious  and  simpler  than  by  locating  it  as  a 
placer  and  with  no  necessity  of  annual  labor  or  $500  ex- 
penditure. 

The  other  principal  prerequisites  are  that  the  land  does  not 
contain  "valuable  deposits  of  gold,  silver,  cinnabar,  copper  or 
coal,"  that  it  is  "unfit  for  cultivation,"  "uninhabited"  and 
contains  no  hostile  improvements. 

The  applicant  makes  no  local  staking  or  record  but  applies 
to  the  Land  Office  direct,  to  purchase,  by  filing  sworn  state- 
ment that  the  land  and  the  applicant  come  within  the  terms 
of  the  Act.  The  procedure  is  the  same  as  that  provided  for  the 
entry  of  land  chiefly  valuable  for  timber.  The  Act  and  a 
statement  of  the  regulations  are  printed  on  pages  658-663. 

. 
Location  Without  Specific  Mineral  Value. 

Some  of  the  decisions  of  the  department  aided  by  the  Act 
of  1892  allowing  quarries  to  be  entered  were  sufficiently  loose 
to  allow  a  claim  to  be  laid  upon  any  ground ;  for  either  what 
can  be  called  building  stone,  or  a  color  of  gold  in  the  pan,  can 
be  found  practically  anywhere — but  the  obviously  needed 
declaration  was  at  length  made  that  land  could  not  be  taken 
up  as  placer  ground  on  mere  wash  or  because  a  color  could 
be  panned,  its  real  value  being  on  account  of  its  proximity 
to  lode  claims.  It  must  contain  mineral  in  paying  quantities. 
—Royal  K.  Placer,  13  L.  D.  86.  Nor  where  it  had  no  char- 
acteristic of  any  form  of  placer. — Searle  Placer,  11  L.  D.  441. 
A  trace  of  gold  is  not  enough. — Midtnomah  Co.  v.  U.  8.,  211 
F.  100,  128  C.  C.  A.  28. 

Discovery  or  Knowledge  of  Mineral  Value  on  Placer  Claim. 

Unless  specifically  required  by  State  statute  or  district 
rule,  no  discovery  shaft  is  required,  but  the  Act  of  Congress 
implies  that  mineral  shall  have  been  found  before  the  right  to 
locate  upon  the  same  as  a  placer  claim  accrues. — 13  L.  D.  86. 

A  discovery  pit  or  shaft  on  a  vein  shows  to  the  eye  a  mineral 
formation  specifically  distinct  from  the  surrounding  country. 


PLACERS.  263 

A  pit  or  shaft  on  placer  gravel  shows  nothing  of  that  sort. 
A  pit  or  shaft  on  any  of  the  various  minerals  claimed  as 
statutory  placers  might  or  might  not  show  such  indication. 
Such  working  is  not  essential  to  the  disclosure  of  mineral 
value  on  this  class  of  claims.  But  it  is  clear  from  the  implied 
requirement  of  knowledge  or  discovery  of  mineral  character, 
that  the  ground  about  to  be  located  must  have  a  special  value 
as  either  placer  proper  or  for  some  special  deposit  treated  as 
placer  ground  under  the  statute,  and  that  merely  surveying 
and  recording  vacant  land  as  and  for  placer  ground  without 
known  value  under  either  class  is  a  void  proceeding  when 
properly  contested  or  attacked. 

Discovery  is  as  essential  on  a  placer  as  it  is  on  a  lode  claim. — 
Steele  v.  Tanana  Mines,  148  F.  678,  78  C.  C.  A.  412.  The  same 
as  to  an  oil  placer.— Smith  v.  Union  Co.,  166  Cal.  217,  135  P. 
966 ;  U.  S.  v.  Midway  Oil  Co.,  232  F.  620. 

Panning  colors  on  surface  of  deep  gravel  drift,  known  to 
be  gold  bearing  by  work  to  bed  rock  in  the  near  locality,  makes 
a  good  discovery. — Lange  v.  Robinson,  148  F.  799,  79  C.  C.  A. 
1.  There  must  be  "such  a  discovery  of  gold  as  to  give  reasona- 
ble evidence  that  the  ground  is  valuable  for  placer  mining. ' ' — 
Charlton  v.  Kelly,  156  F.  436,  13  Ann.  Gas.  518,  84  C.  C.  A. 
295;  Murray  v.  White,  42  Mont.  423,  Ann.  Gas.  1912A,  1297, 
113  P.  754.  And  it  must  be  within  the  lines  of  the  claim. — 
Waskey  v.  Hammer,  170  F.  31,  95  C.  C.  A.  305. 

Discovery  need  not  precede  the  location  and  record. — Whit- 
ing v.  Straup,  95  P.  849,  17  Wyo.  1. 

An  association  located  a  160-acre  placer  and  before  dis- 
covery conveyed  a  specific  part  to  a  corporation  who  sank  a 
well  and  made  a  valid  discovery  which  the  Court  held  to  vali- 
date the  entire  claim. — Merced  Co.  v.  Patterson,  162  Cal.  358, 
122  P.  950. 

In  proving  a  discovery  on  a  placer  claim  the  locator  is 
allowed  to  supplement  the  proof  of  discovery  of  colors  by 
expert  testimony  as  to  the  condition  of  neighboring  claims 
and  that  such  colors  would  justify  an  ordinarily  prudent  man 


264  PLACERS. 

in  further  developing  the  property. — Cascaden  v.  Bortolis, 
162  F.  267,  15  Ann.  Gas.  625,  89  C.  C.  A.  247. 

Digging  ore  from  the  neighborhood  of  old  and  well  known 
workings  is  not  such  a  discovery  as  entitled  the  miner  to  claim 
the  State  license.— St.  Anthony  Co.  v.  Shaffra,  120  N.  W.  238, 
138  Wis.  507. 

In  Garibaldi  v.  Grillo  the  little  prospecting  testified  to  was 
held  no  sufficient  discovery;  but  the  Court  went  further  and 
held  the  very  debatable  proposition  that  the  parties  could 
not  by  stipulation  waive  proof  of  discovery. — 17  Cal.  App. 
540,  120  P.  425. 

Discovery  Pit— Overlaps— Priority. 

Plaintiffs  staked  a  placer  claim  and  made  a  discovery  within 
its  bounds.  Afterwards  they  extended  their  lines  so  as  to 
overlap  an  adjoining  claim  which  had  as  yet  no  discovery  but 
its  owners  were  in  possession.  Plaintiffs  made  no  discovery  on 
the  overlap.  Held,  that  their  original  discovery  applied  only 
to  their  original  stakes  and  that  they  had  no  title  to  the  over- 
lap.—Biglow  v.  Conradt,  159  F.  868,  87  C.  C.  A.  48. 

It  may  be  reasoned  from  this  decision  that  while  the  first 
discoverer  in  taking  up  the  area  allowed  by  law  might  include 
ground  upon  which  another  prospector  was  only  seeking  to 
make  a  discovery,  yet  he  can  not  do  so  where  he  had  already 
set  certain  stakes  and  applied  his  discovery  to  the  ground 
within  those  stakes. 

A  placer  locator  in  making  new  lines  to  exclude  excess 
ground  left  out  his  discovery  pit,  but  it  was  held  that  if  he 
made  a  new  discovery  elsewhere  within  his  lines  before  the 
entry  of  a  second  party  his  claim  would  be  valid  in  that 
respect.— Waskey  v.  Hammer,  170  F.  31,  95  C.  C.  A.  305; 
affirmed,  223  U.  S.  85,  56  L.  Ed.  359,  32  Sup.  Ct.  Rep.  187. 

Where  two  sets  of  placer  prospectors  staked  out  overlapping 
claims  and  both  began  sinking  for  mineral,  the  first  to  dis- 
cover gold  held  the  ground  without  regard  to  priority  of 
staking.— Hanson  v.  Craig,  170  F.  62,  95  C.  C.  A.  338 ;  Johan- 


PLACEES.  265 

son  v.  White,  160  F.  901,  88  C.  C.  A.  83;  Hall  v.  McKinnon, 
193  F.  572,  113  C.  C.  A.  440. 

A    Separate    Discovery    on   Each    Twenty    Acres    Is    Not 

required  where  there  has  been  a  joint  location  of  160  acres. — 
McDonald  v.  Montana  Co.,  14  Mont.  88,  43  Am.  St.  Rep.  616, 
35  P.  668 ;  Whiting  v.  Straup,  17  Wyo.  54,  95  P.  849 ;  Kirk  v. 
Mcldrum,  21  M.  R.  393,  28  Colo.  453,  65  P.  633 ;  Union  Oil  Co., 
25  L.  D.  351,  overruling  previous  Land  Office  holding  to  the 
contrary.— L.  0.  Reg.  19. 

Dummies — Nominal  Association. 

It  requires  eight  bona  fide  locators  to  lawfully  claim  160 
acres.  The  names  of  nominal  parties  are  often  used  to  locate 
placer  ground,  and  such  nominal  association  is  not  questioned 
in  land  office  proceedings,  but  its  validity  may  well  be  doubted 
when  contested  in  court.  Such  use  of  names  with  agreement 
to  reconvey  without  consideration  has  been  held  void  as 
against  public  policy.— Mitchell  v.  Cline,  84  Cal.  409,  24  P. 
164;  Durant  v.  Corbin,  94  F.  382,  20  M.  R.  84. 

In  Gird  v.  California  Oil  Co.,  60  F.  532,  18  M.  R.  45,  the 
Court  held  to  a  very  strict  construction  on  this  point,  and 
ruled  that  where  three  persons  in  the  employ  of  a  corporation 
located  sixty  acres  it  was  good  only  to  the  extent  of  a  single 
location  of  twenty  acres. 

The  defendant  can  not  show  in  an  action  where  the  govern- 
ment is  not  a  party  either  actually  or  constructively,  that 
the  claim  was  located  by  dummies  for  plaintiff's-  benefit. — 
Riverside  Co.  v.  Hardwick,  16  N.  M.  479,  120  P.  325. 

In  Hall  v.  McKinnon,  193  F.  572,  113  C.  C.  A.  440,  it  was 
held  that  proof  that  locator  was  a  dummy  would  not  be 
allowed  when  there  was  no  such  allegation  in  the  pleadings. 

In  Nome  Co.  v.  Snyder,  187  F.  385,  109  C.  C.  A.  217,  it  was 
held  that:  A  location  by  five  persons  of  10.0  acres  under  an 
arrangement  by  which  a  stock  company  was  to  be  formed  and 


268  PLACERS. 

issue  to  some  of  the  parties  less  than  one-fifth  and  to  others 
more  than  one-fifth  was  invalid  as  to  the  whole,  the  effect 
being  to  give  to  each  of  the  latter  class  a  location  of  more  than 
the  legal  limit  of  twenty  acres.  By  this  line  of  argument  a 
location  regular  on  its  face  was  defeated.  In  44  L.  D.  340, 
where  the  associates  incorporated  and  took  stock,  the  transac- 
tion was  held  valid. 

After  location  is  complete  the  association  may  make  agree- 
ment hy  which  one  of  them  may  own  more  than  twenty  acres. 
—Eooney  v.  Barnette,  200  F.  700,  119  C.  C.  A.  116. 

A  placer  location  of  160  acres  hy  eight  persons  invalid  for 
want  of  discovery  can  not  be  perfected  by  the  locator's  single 
grantee  upon  subsequent  discovery. — 38  L.  D.  59. 

A  placer  location  of  160  acres  subsequently  transferred  to 
one  person,  invalid  for  want  of  discovery,  can  be  perfected 
by  the  transferee  only  as  to  twenty  acres. — 39  L.  D.  460. 

The  department  may  question  the  extent  of  mineral  land 
covered  by  a  placer  and  non-mineral  bearing  tracts  may  be 
cut  out.— 39  L.  D.  299. 

Attempting  Excess  by  Amendment. 

Where  the  maximum  quantity  has  been  taken  by  a  certain 
number  of  persons,  the  size  can  not  be  enlarged  by  an  amended 
location. — 38  L.  D.  28.  The  owner  of  two  contiguous  loca- 
tions can  not  merge  them  into  one  by  amended  location. — Id. 

Size  of  Claim  That  May  Be  Located  Is  Limited  to  20  Acres 

to  each  individual  or  person.  A  corporation  is  one  person 
without  reference  to  the  number  of  its  incorporators. — 38 
L.  D.  281.  It  can  not,  by  the  use  of  its  stockholders'  names, 
locate  more  than  a  single  twenty-acre  claim. — 40  L.  D.  401. 
An  association  of  persons  may  locate  a  claim  in  common  not 
exceeding  twenty  acres  to  each  individual  in  the  association, 
and  not  exceeding  160  acres  to  the  entire  association.  A  loca- 
tion by  an  association  of  160  acres  is  but  a  single  claim. — 


PLACERS.  267 

Miller  v.  Chrisman,  140  Cal.  440,  98  Am.  St.  Rep.  63,  73  P. 
1083,  74  P.  444. 

There  is  no  limitation  on  the  number  of  placer  claims  which 
one  person  may  locate  (except  in  Alaska). — Riverside  Co.  v. 
Hardwick,  16  N.  M.  479,  120  P.  323. 

Excess  Acreage. 

Where  a  miner  has-  located  a  claim  in  excess  of  the  twenty- 
acre  limit,  he  has  still  the  right  to  his  twenty  acres,  and  to  a 
reasonable  time  to  select  it. — Zimmerman  v.  Funchion,  161 
F.  859,  89  C.  C.  A.  53.  In  default  of  such  a  selection  the 
excess  may  be  taken  up  by  a  stranger. — Oohres  v.  Illinois  Co., 
40  Or.  516,  67  P.  666. 

When  unauthorized  names  have  been  used  to  take  up  a 
placer  claim  this  does  not  prevent  the  parties  not  connected 
with  the  fraud  from  segregating  and  retaining  each  his 
twenty  acres  out  of  the  larger  tract. — Cook  v.  Klonos,  168  F. 
700,  94  C.  C.  A.  144;  Waskey  v.  Hammer,  170  F.  31,  95 
C.  C.  A.  305. 

The  Navajoe  placer  survey  was  found  to  contain  a  little 
over  two  and  one-half  acres  in  excess  of  the  legal  limit  of 
twenty  acres.  When  this  was  discovered  the  Papoose  .frac- 
tion placer  was  located  to  overlap  the  Navajoe  to  the  extent 
of  the  excess.  Two  judges  of  the  Court  held  that  the  later 
location  was  wholly  void;  that  the  Navajoe  had  a  reasonable 
time  to  disclaim  on  the  excess,  and  it  was  not  for  strangers 
to  say  where  the  excess  was  to  be  cut  out.  GILBERT,  J.,  dis- 
sented in  a  very  strong  opinion. — Jones  v.  Wild  Goose  Co., 
177  F.  95,  29  L.  R,  A.  (N.  S.)  392,  101  C.  C.  A.  349. 

Conformation  to  U.  S.  Sectional  Subdivisions. 

The  Act  speaks  of  making  survey  for  the  placer  claim  con- 
form as  nearly  as  possible  with  the  rectangular  subdivisions  of 
the  public  lands,  but  under  the  early  practice  in  the  Land 
Office  it  was  utterly  disregarded — so  much  so  as  to  allow  pat- 
ents to  issue  in  fantastic  shape  obviously  intended  to  secure 
the  bed  of  streams  or  other  irregular  advantages. 


268  PLACERS. 

But  later,  strict  compliance  was  required,  the  entry  being 
confined  to  contiguous  blocks  of  not  less  than  ten  acres  each, 
and  a  rectangular  piece  of  ground  when  on  unsurveyed  land. 
—30  L.  D.  225,  32  Id.  198,  363,  401 ;  34  Id.  42,  44,  56,  260 ;  35 
Id.  557.  By  a  later  decision  some  of  the  previous  holdings 
were  overruled  and  modified  and  the  ruling  now  is  that  where 
strict  conformity  is  impracticable,  it  will  be  sufficient  if  the 
ground  located  by  one  or  two  persons  can  be  entirely  included 
within  a  square  forty-acre  tract;  by  three  or  four  persons, 
within  two  forty-acre  tracts  placed  end  to  end ;  by  five  or  six 
persons,  within  three,  and  by  seven  or  eight  persons,  within 
four  such  tracts.  The  forty-acre  tracts  need  not  have  cardinal 
lines.— 37  L.  D.  250.  See  L.  0.  Keg.  30,  p.  492. 

Where  the  mineral  ground  is  confined  within  a  narrow 
canyon  the  location  need  not  conform  to  the  subdivisions. — - 
Mitchell  v.  Hutchinson,  142  Cal.  404,  76  P.  55.  The  depart- 
ment has  made  a  like  ruling  in  cases  involving  "gulch"  claims. 
—32  L.  D.  363,  401. 

Procedure  to  Complete  Location. 

Presuming  that  free  gold  or  some  other  valuable  deposit 
other  than  a  lode  in  place  is  known  to  exist,  in  other  words, 
that  a  discovery  in  some  form  has  been  made  on  the  ground, 
the  claimant  must  post  upon  the  claim  the  statutory  notice 
(p.  258)  which  may  be  in  form  as  follows: 

LOCATION  NOTICE. 

Nellie  Moore  Placer  Claim. 

The  undersigned  claims  SO  acres  for  placer  mining  purposes,  as  staked 
on  this  ground.  Date  of  discovery,  January  10,  1916. 

GEORGE  A.  MCDONALD. 

SECOND  FORM. 

Ballarat  Placer  Claim. 

The  undersigned  claims  1320  feet  in  length  along  the  gulch  by  660  feet 
in  breadth,  for  placer  mining  purposes,  as  staked  on  this  ground.  Discov- 
ered January  10,  1916.  T.  S.  WALTEME'YEB. 


PLACERS.  269 

Tales. 

It  will  be  noted  that  the  notice  on  the  stake  in  Colorado 
must  contain  the  date  of  discovery  while  the  record  must  con- 
tain the  date  of  location.  The  date  when  the  posting  and  stak- 
ing are  completed  would  be  such  date  of  location. 

Place  of  Posting. 

Where  not  directed  by  statute  or  district  rule,  such  notice 
should  be  posted  at  the  center  point  of  the  claim,  or  at  some 
point  where  the  prospecting  pits  show  actual  work.  It  should 
be  conspicuous  and  either  close  to  the  apparent  discovery  or 
at  the  center  as  above  suggested. 

Stakes  and  Ties. 

The  locator  then  stakes  his  claim,  placing  a  "substantial 
post,"  "sunk  in  the  ground"  at  each  angle  of  the  claim.  No 
center  stakes  are  required.  Accuracy  and  strictness  in  fixing 
and  marking  the  boundaries  can  not  be  too  severely  urged. 
Of  course  the  discovery  pit  or  some  of  the  angles  should  be 
tied  to  "natural  objects"  or  "permanent  monuments"  in 
order  to  make  a  proper  location  certificate  or  record.  We 
advise  the  same  as  in  case  of  lode  claim  (see  page  57).  A 
failure  to  stake  invalidates  the  claim. — Anthony  v.  Jillson, 
16  M.  B.  26,  83  Cal.  296,  23  P.  419. 

Location  by  Trespass. 

The  rule  that  a  location  can  not  be  initiated  by  trespass 
upon  a  prior  valid  possession  applied  in  contest  where  both 
claims  were  placers. — Kirk  v.  Meldrum,  28  Colo.  453,  65  P. 
633,  21  M.  R.  393;  Little  Co.  v.  Bacigalupi,  167  Cal.  381,  139 
P.  802. 

Staking  Government  Subdivisions. 

Whether  staking  is  required  where  the  claim  is  taken  up  by 
governmental  subdivisions  has  been  the  subject  of  curious 
judicial  rulings.  It  was  held  that  the  locator  must  stake  out 


270  PLACERS. 

his  claim  the  same  as  if  he  were  locating  on  a  private  survey, 
in  White  v.  Lee,  78  Gal.  593,  21  P.  363,  17  M.  R.  206.  This 
decision  was  followed  by  a  case  in  Arkansas,  Worthen  v.  Sid- 
ivay,  72  Ark.  215,  79  S.  W.  777,  and  just  about  the  same  time 
White  v.  Lee  was  overruled  in  Kern  Co.  v.  Crawford,  143  Cal. 
298,  3  L.  R.  A.  (N.  S.)  993,  76  P.  1111. 

Colorado  holds  positively  that  every  placer  claim  must  be 
staked.— Saxton  v.  Perry,  47  Colo.  263,  107  P.  281. 

It  would  seem  that  the  question  could  arise  only  where  a 
full  quarter  section  is  taken  up  as  one  claim,  for  the  govern- 
ment does  not  stake  any  smaller  subdivisions,  while  it  allows 
subdivisions  as  small  as  ten  acres  to  be  taken  up.  It  does  not 
follow  that  the  original  survey  stakes  are  on  the  ground  when 
the  location  is  made,  nor  if  they  were  would  they  afford  the 
slightest  notice  that  -the  quarter  section  had  been  located  as  a 
mining  claim.  In  view  of  the  contrary  status  of  the  rulings 
the  only  safe  procedure  is  to  stake  de  novo. 

And  yet  the  Land  Office  has  ruled  that  no  staking  is  re- 
quired where  any  subdivision  is  taken. — 22  L.  D.  409.  Where 
the  statute  of  any  State  requires  staking  as  an  item  of  the 
location  the  point  should  be  clear  to  the  contrary. 

Where  a  placer  claim  is  located  by  a  legal  subdivision  it 
need  not  except  or  refer  to  fractions  already  patented.  The 
record  should  claim  the  subdivision,  leaving  it  to  the  Land 
Office  to  make  the  proper  exclusions — changing  the  old  ruling 
on  this  point.— Green  v.  Gavin,  10  Cal.  App.  330,  101  P.  931, 
citing  43  L.  D.  44  and  31  L.  D.  64. 

Non-Contiguous  Fractions. 

Six  or  eight  placer  claims,  contiguous,  overlapping  and 
irregular  in  shape,  covered  about  a  quarter  section  of  ground, 
leaving  several  small  non-contiguous  fractions  of  vacant 
ground  between  them.  Plaintiffs  surveyed  an  association  claim 
over  almost  the  whole  area  occupied  by  the  prior,  smaller 
claims,  and  contended  that  this  gave  them  title  to  the  frac- 
tions; but  the  Court,  construing  the  language  of  Sec.  2330, 


PLACERS.  271 

above  printed,  held  that  their  blanket  location  was  void. — 
Slenfield  v.  Espe,  171  F.  825,  96  C.  C.  A.  497. 

Record. 

The  notice  being  erected  and  the  ground  surveyed  and 
staked,  the  location  is  complete  and  ready  for  record,  the  loca- 
tion certificate  being  in  form  as  follows : 

PLACER  LOCATION   CERTIFICATE. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  I,  George  A.  McDonald, 
of  the  City  and  County  of  Denver,  State  of  Colorado,  claim,  by  right  of 
discovery  and  location,  the  Nellie  Moore  placer  claim,  containing  twenty 
\zres  (or  1320  feet  in  length  by  660  feet  in  width),  situate  in  Cripple 
Creek  Mining  District,  County  of  Teller,  State  of  Colorado,  bounded  and 
described  as  follows,  to-wit:  Beginning  at  stake  at  corner  No.  1:  (here 
insert  description,  giving  a  course  to  each  line,  and  tying  one  or  more 
corners  to  a  government  corner,  well  known  natural  object  or  permanent 
monument,  etc.).  Date  of  discovery,  January  10,  1915.  Date  of  location, 
January  27,  1915.  Date  of  certificate,  January  £3,  1915. 

GEORGE  A.  MCDONALD. 

Description  by  claiming  so  many  feet  along  the  creek  and 
so  many  feet  on  each  side  of  the  creek,  treating  the  creek  as 
an  identifying  monument,  was  sustained  in  McKinley  Co.  v. 
Alaska  Co.,  183  U.  S.  563,  46  L.  Ed.  331,  22  Sup.  Ct.  Rep.  84, 
21  M.  R.  730. 

An  amended  location  certificate  may  be  filed  the  same  as 
allowed  for  lode  claims.— Kirk  v.  Meldrum,  28  Colo.  453,  65 
P.  634,  21  M.  R.  393. 

In  Strickland  v.  Commercial  Co.  the  record  of  a  placer  claim 
(in  a  State  which  has  no  statutory  requirements  as  to  such 
record)  was  held  void  for  indefiniteness. — 55  Or.  48,  104 
P.  965. 

Federal  Requirements. 

The  federal  requirements  of  R.  S.  Sec.  2324  as  to  marking 
boundaries,  names  of  locators,  date  of  location  and  descrip- 
tion by  tie,  recited  in  detail  on  p.  68,  are  mandatory  and  apply 
to  placers  as  well  as  to  lode  claims. — Ware  v.  White,  81  Ark. 
220, 108  S.  W.  831. 


272  PLACERS. 

The  Statutory  Requirements 

of  Alaska  and  those  mining  States  which  detail  the  location 
of  placer  claims  are  as  follows: 

Alaska. 

LOCATION  NOTICE. 

Any  person  qualified  under  the  laws  of  the  United  States,  who  discovers 
upon  the  public  domain  within  the  Territory  of  Alaska,  a  placer  deposit 
of  gold,  or  other  mineral  which  is  subject  to  entry  and  patent  under  the 
mining  laws  of  the  United  States,  may  locate  a  mining  claim  thereon  in 
the  following  manner,  to-wit: 

First — He  shall  post,  or  write  upon  the  initial  post,  stake,  or  monument 
on  the  claim,  a  notice  of  location  containing: 

a.  The  name  or  number  of  the  claim. 

b.  The  name  of  the  locator  or  locators. 

c.  The  date  of  discovery  and  of  posting  notice  on  the  claim.        t 

d.  The  number  of  feet  in  length  and  width  of  the  claim. 
This  notice  shall  be  known  as  the  location  notice. 

STAKING. 

Second — He  shall  distinctly  mark  the  location  on  the  ground  so  that  its 
boundaries  can  be  readily  traced,  by  placing  at  each  corner  or  angle 
thereof  substantial  stakes,  or  posts,  not  less  than  three  feet  high  above 
the  ground  and  three  inches  in  diameter,  hewed  on  four  sides;  or  by 
placing  at  each  corner  or  angle  thereof  mounds  of  earth  or  rock  not  less 
than  three  feet  high  and  three  feet  in  diameter  and  the  stakes,  posts  or 
monuments  so  used  must  be  marked  with  the  name  or  number  of  the 
claim  and  the  designation,  by  number,  of  the  corner  or  angle.  The 
initial  stake  or  monument  shall  be  one  of  the  corner  stakes,  posts  or 
monuments  of  the  claim  located. 

BLAZING  LINE  STAKES. 

If  the  claim  is  located  on  ground  that  is  covered  wholly  or  in  part 
with  brush  or  trees,  such  brush  or  trees  shall  be  cut  or  blazed  along  the 
lines  of  such  claim,  so  as  to  be  readily  traced. 

If  located  in  an  open  country,  the  boundary  lines  shall  be  located  by 
placing  line  stakes  or  line  monuments  so  as  to  be  readily  traced  from 
corner  to  corner  of  said  claim. — Sec.  1,  Act  of  April  20,  1915. 


PLACERS.  273 

LOCATION  CERTIFICATE.    RECORD. 

See.  2. — Within  ninety  days  after  the  discovery  and  posting  of  the 
notice  aforesaid,  the  locator  shall  record  with  the  Recorder  of  the  District 
wherein  such  claim  is  situated,  a  certificate  of  location.  Such  certificate 
shall  contain: 

a.  The  name  or  number  of  the  claim. 

b.  The  name  of  the  locator  or  locators. 

c.  The  date  of  discovery  and  of  posting  of  the  location  notice. 

d.  The  number  of  feet  in  length  and  width  of  claim. 

e.  It  shall  set  forth  the  description  with  reference  to  some  natural 
object,  permanent  monument,  or  well  known  mining  claim,  together  with 
a  description  of  the  boundaries  thereof  so  far  as  applied  to  the  numbering 
of  stakes  or  monuments. 

A  failure  to  record  a  certificate  of  location  of  claim  as  herein  provided 
shall  operate  as  and  be  deemed  abandonment  thereof,  and  the  ground  so 
located  shall  be  open  to  relocation;  Provided,  That  if  a  full  compliance 
with  the  preceding  provisions  of  this  act  shall  have  been  made  before  any 
location  by  another,  such  compliance  shall  operate  to  prevent  the  aban- 
donment or  forfeiture  of  such  claim  and  save  the  rights  of  the  original 
locator. — Sec.  2  Id. 

LIMITATIONS  OF  LENGTH  AND  WIDTH. 

That  no  individual  placer  mining  location  hereafter  made  shall  be 
more  than  thirteen  hundred  twenty  feet  in  its  greatest  length;  and  no 
association  placer  mining  claim  hereafter  located  shall  be  more  than  two 
thousand  six  hundred  forty  feet  in  its  greatest  length. — Sec.  5  Id. 

The  A.  C.  of  August  1, 1912,  37  Stat.  L.  242,  reads  as  follows : 

That  no  association  placer  mining  claim  shall  hereafter  be  located  in 
Alaska  in  excess  of  forty  acres.  *  *  *  — Sec.  1. 

Sec.  2  of  the  A.  C.,  the  agency  placer  location  section,  is  printed  on 
page  635  as  Sec.  129B  of  the  Territorial  Act. 

That  no  person  shall  hereafter  locate,  cause  or  procure  to  be  located, 
for  himself  more  than  two  placer  mining  claims  in  any  calendar  month; 
Provided,  That  one  or  both  of  such  locations  may  be  included  in  an 
association  claim. — Sec.  3. 

That  no  placer  mining  claim  hereafter  located  in  Alaska  shall  be 
patented  which  shall  contain  a  greater  area  than  is  fixed  by  law,  nor 
which  is  longer  than  three  times  its  greatest  width. — Sec.  4. 

As  Sec.  1  of  the  A.  C.  above  printed  limits  the  area  of  an  association 
claim,  and  the  Territorial  Act  (p.  636)  limits  the  length  and  width,  a 
confusion  is  produced  which  requires  close  attention  to  conform  to  the 
limited  area  and  the  proportions  between  length  and  width. 

Only  40  acres  can  be  located  as  an  association  claim.     The  length 


274  PLACERS. 

can  not  exceed  2,640  feet -and  the  length  must  not  exceed  three  times  tha 
width. 

A  claim  1,320  by  1,320  feet  makes  the  full  40  acre  limit.  A  claim 
2,640  feet  in  length  by  880  feet  in  width  keeps  it  within  the  provision 
that  the  length  must  not  exceed  three  times  the  width,  but  such  a  claim 
would  make  an  association  location  in  excess  of  53  acres,  which,  of  course, 
is  forbidden. 

2,640  feet  by  660  feet  makes  the  40  acres  but  violates  the  clause  as  to 
three  times  the  width. 

1,980  feet  by  880  feet  makes  40  acres  and  this  figure,  1,980,  seems  to  be 
the  greatest  length  in  even  feet  that  can  be  surveyed  to  get  exactly 
40  acres  and  at  the  same  time  keep  within  the  provision  that  the  length 
must  not  exceed  three  times  the  width. 

2,286  feet  length  by  762  feet,  one-third  of  its  width,  makes  a  location 
of  39.981  acres. 

Arizona. 

1.  Post  notice  containing  name  of  the  claim,  name  of  locator,  date  of 
location  and  number  of  acres  claimed,  and  description,  with  reference 
to  natural  object  or  permanent  monument. 

2.  Mark  boundaries  with  post  or  monument  of  stones  at  each  angle  of 
claim.    Posts  must  be  four  inches  (square)  by  four  and  a  half  feet  long 
set  one  foot  in  the  ground  and  surrounded  by  a  mound  of  stone  or  earth. 
' '  When  a  mound  of  stone  is  used  it  must  be  at  least  three  feet  in  height 
and  four  feet  in  diameter  at  the  base. ' ' 

3.  Within   sixty   days   after   date   of    location,   record    with    County 
Recorder  a  copy  of  the  location  notice. 

California. 

1.  Post  upon  a  tree^  rock  in  place,  stone,  post  or  monument  a  notice  of 
location,  containing  the  name  of  the  claim,  name  of  locator  or  locators, 
date  of  location,  number  of  feet  or  acreage  claimed,  such  a  description  of 
the  claim  by  reference  to  some  natural  object  or  permanent  monument 
as  will  identify  the  claim  located,  and  by  marking  the  boundaries  so  that 
they  may  be  readily  traced;   Provided,  That  where  the  United   States 
survey  has  been  extended  over  the  land  embraced  in  the  location,  the 
claim  may  be  taken  by  legal  subdivisions  and  no  other  references  than 
those  of  said  survey  shall  be  required  and  the  boundaries  of  a  claim  so 
located  and  described  need  not  be  staked  or  monumented.    The  descrip- 
tion by  legal  subdivisions  shall  be  deemed  the  equivalent  of  marking. 

2.  Within  thirty  days  after  posting  record  a  true  copy  of  the  notice 
in  the  office  of  the  County  Recorder. 


PLACER&  275 

Idaho. 

1.  Placer  claims,  as  mentioned  in  section  2329  of  the  Revised  Statutes 
of  the  United  States,  may  be  located  for  the  purpose  of  mining  deposits 
and  precious  stones  after  the  discovery  of  such  deposits. — Rev.  Code, 

Sec.  3221. 

DETAILS  OF  LOCATION. 

2.  The  locator  of  any  placer  mining  claim  located  for  the  purpose  of 
mining  placer  deposits  or  precious  stones  must,  at  the  time  of  making 
the  location,  place  a  substantial  post  or  monument  as  is  required  in  the 
location  of  quartz  claims  at  each  corner  of  the  location,  and  must  also 
post  on  one  of  the  same  a  notice  of  location  containing  the  date  of  the 
location,  the  name  of  the  locator,  the  name  and  dimensions  of  the  claim, 
the  mining  district  (if  any)  and  county  in  which  the  same  is  situated; 
and  must  also  give  the  distance  and  direction  from  said  post  or  monument 
to  such  natural  object  or  permanent  monument,  if  any  such  there  be, 
as  will  fix  and  describe  in  the  notice  itself  the  location  of  the  claim. 

Within  fifteen  days  after  making  the  location,  the  locator  must  make 
an  excavation  upon  the  claim  of  not  less  than  one  hundred  cubic  feet, 
for  the  purpose  of  prospecting  the  same. 

Within  thirty  days  after  the  location,  the  locator  must  file  for  record 
in  the  office  of  the  Recorder  of  the  county,  or  of  the  Deputy  Recorder 
of  the  mining  district  in  which  the  claim  is  situated,  a  substantial  copy 
of  his  notice  of  location,  to  which  must  be  attached  an  affidavit  such  as 
is  required  in  case  of  quartz  claims. — Eev.  Code,  Sec.  3222, 

Montana. 

1.  Post  notice  at  point  of  discovery,  containing  name  of  the  claim,, 
name  of  locator,  date  of  location  and  number  of  acres  or  superficial  feet 
claimed. 

2.  Within  sixty  days  from  date  of  posting  sink  shaft  ten  feet  ver- 
tically disclosing   the   deposit   or  its   equivalent,   same  as  lode   claims, 
page  74. 

3.  Within  thirty  days  from  date  of  posting,  mark  boundaries  in  same 
manner  as  required  in  case  of  lode  claims. 

4.  WTithin  sixty  days  after  posting  notice  record  in  the  office  of  the 
County  Clerk  a  certificate  of  location  containing  same  as  in  case  of  lode 
claims,  page -74,  but  instead  of  length  and  width  state:    "The  dimen- 
sions or  area  of  the  claim  and  the  location  thereon  on  the  discovery 
shaft,  cut  or  tunnel." 

The  last  words  of  the  above  quotation  beginning  with  "and  the 
location ' '  are  not  intelligible,  but  possibly  it  was  intended  that  the  record 
should  indicate  the  position  of  the  discovery  pit. 

This  certificate  must  be  verified  as  per  form  on  page  75. 


276  PLACERS. 

Nevada. 

1.  Post  upon  a  tree,  rock  in  place,  stone,  post  or  monument,  a  notice  of 
location  containing   the   name   of   the   claim,   name   of   locator,   date   of 
location,  and  number  of  feet  or  acres  claimed. 

2.  Mark  surface  boundaries  and  the  location  point  in  the  same  manner 
and  by  same  means  required  for  lode  claims;  on  surveyed  land  when  taken 
by  legal  subdivision,  only  the  location  point  need  be  marked.    (Page  75.) 

3.  Within  ninety  days  after  posting  the  notice  of  location,  perform 
not  less  than  $20  worth  of  labor  upon  the  claim  for  the  development 
thereof  and  record  with  District  and  County  Eecorder  a  certificate  which 
shall  state  the  name  of  the  claim,  designating  it  as  a  placer  claim;  name 
of  the  locator;   date  of  location;  number  of  feet  or  acres  claimed  and 
description  of  the  claim  with  regard  to  some  natural  object  or  permanent 
monument  so  as  to  identify  the  claim  and  the  kind  and  amount  of  location 
work  done  and  the  place  on  the  claim  where  said  work  was  done. 

New  Mexico. 

(Act  of  1909) 

The  locator  at  the  time  of  making  any  location  of  any  placer  mining 
claim  shall  cause  a  notice  of  such  location  to  be  placed  at  a  designated 
corner  of  the  claim  stating  the  name  of  the  claim,  the  purpose  and  the 
kind  of  material  for  which  such  claim  is  located,  and  the  name  of  the 
locator.  If  on  surveyed  lands  such  notice  shall  contain  a  description  by 
its  legal  subdivisions;  on  unsurveyed  lands  a  description  by  metes  and 
bounds  with  reference  to  some  known  object  or  monument. 

Each  corner,  whether  on  surveyed  or  unsurveyed  lands,  shall  be  marked 
by  a  wooden  post  at  least  four  feet  high,  securely  set  in  the  ground  or 
Oy  a  substantial  stone  monument. 

A  duplicate  of  such  location  notice  shall  be  filed  and  recorded  in  the 
office  of  the  Probate  Clerk  within  ninety  days  after  notice  posted. 

There  must  be  a  previous  discovery:  except  that  oil  and  gas  claimants 
shall  have  to  the  end  of  the  calendar  year  to  make  discovery  and  their 
possession  in  the  meantime  is  to  be  protected. 

Utah. 

The  statutory  provisions  as  to  location  and  record  of  lode  claims 
<page  81)  apply  also  to  placer  claims,  the  notice  and  record  in  eases  of 
placers  giving  the  number  of  acres  or  superficial  feet  claimed.— Co mp. 
Laws  1907,  Sec.  1496. 


PLACERS.  277 

Washington. 

LOCATION  NOTICE.     STAKING. 

The  discoverer  of  placers  or  other  forms  of  deposits  subject  to  location 
and  appropriation  under  mining  laws  applicable  to  placers  shall  locate  his 
claim  in  the  following  manner: 

First — He  must  imrriediately  post  in  a  conspicuous  place  at  the  point 
of  discovery  thereon,  a  notice  or  certificate  of  location  thereof,  containing 
(a)  the  name  of  the  claim;  (b)  the  name  of  the  locator  or  locators; 
(e)  the  date  of  discovery  and  posting  of  the  notice  hereinbefore  provided 
for,  which  shall  be  considered  as  the  date  of  the  location;  (d)  a  descrip- 
tion of  the  claim  by  reference  to  legal  subdivisions  of  sections,  if  the 
location  is  made  in  conformity  with  the  public  surveys;  otherwise,  a 
description  with  reference  to  some  natural  object  or  permanent  monu- 
ments as  will  identify  the  claim ;  and  where  such  claim  is  located  by  legal 
subdivisions  of  the  public  surveys,  such  location  shall,  notwithstanding 
that  fact,  be  marked  by  the  locator  upon  the  ground  the  same  as  other 
locations. 

EECORD.     MONUMENTS. 

Second — Within  thirty  days  from  the  date  of  such  discovery  he  must 
record  such  notice  or  certificate  of  location  in  the  office  of  the  auditor  of 
the  county  in  which  such  discovery  is  made,  and  so  distinctly  mark  his 
location  on  the  ground  that  its  boundaries  may  be  readily  traced. 

DISCOVERY  WORK.    OIL  AND  GAS  EXCEPTED. 

Third — Within  sixty  days  from  the  date  of  discovery  the  discoverer 
shall  perform  labor  upon  such  location  or  claim  in  developing  the  same 
to  an  amount  which  shall  be  equivalent  in  the  aggregate  to  at  least  ten 
dollars'  worth  of  such  labor  for  each  twenty  acres  or  fractional  part 
thereof  contained  in  such  location  or  claim;  Provided,  hoivever,  that 
nothing  in  this  subdivision  shall  be  held  to  apply  to  lands  located  under 
the  laws  of  the  United  States  as  placer  claims  for  the  purpose  of  the 
development  of  petroleum  and  natural  gas  and  other  natural  oil  products. 

AFFIDAVIT  OF  PERFORMANCE. 

Fourth — Such  locator  shall  upon  the  performance  of  such  labor,  file 
with  the  Auditor  of  the  county  an  alWdavit  showing  such  performance 
and  generally  the  nature  and  kind  of  work  so  done.  B.  $  B.  Code, 
Sec.  7367. 


278  PLACERS. 

Wyoming. 

LOCATION  CERTIFICATE. 

Hereafter  the  discoverer  of  any  placer  claim  shall,  within  ninety  days 
after  the  date  of  discovery,  cause  such  claim  to  be  recorded  in  the  office 
of  the  County  Clerk  and  ex-offlcio  Register  of  Deeds  of  the  county  within 
which  such  claim  may  exist,  by  filing  therein  a  location  certificate,  which 
shall  contain  the  following: 

First — The  name  of  the  claim,  designating  it  as  a  placer  claim. 
Second — The  name  or  names  of  the  locator  or  locators  thereof. 
Third — The  date  of  location. 
Fourth — The  number  of  feet  or  acres  thus  claimed. 

Fifth — A  description  of  the  claim  by  such  designation  of  natural  or 
fixed  objects  as  shall  identify  the  claim  beyond  question. 

LOCATION  NOTICE  AND  STAKING. 

Before  filing  such  location  certificate,  the  discoverer  shall  locate  his 
claim:  First — By  securely  fixing  upon  such  claim  a  notice  in  plain, 
painted,  printed,  or  written  letters  containing  the  name  of  the  claim,  the 
name  of  the  locator  or  locators,  the  date  of  the  discovery,  and  the  number 
of  feet  or  acres  claimed.  Second — By  designating  the  surface  boundaries 
by  substantial  posts  or  stone  monuments  at  each  corner  of  the  claim. 
—Comp.  St.,  Sec.  S474. 

North  and  South  Dakota,  and  Oregon  Have  No  Specific 

statutory  provisions  for  the  manner  of  locating  and  recording 
placer  claims,  and  in  those  States  such  locations  are  governed 
by  district  rules,  where  such  rules  exist,  and  by  the  terms  of 
A.  C.  Sec.  2324.  See  page  68. 

A  placer  location  made  according  to  the  forms  given  for 
Colorado  would  doubtless  be  sufficient  in  any  State  where 
neither  local  statute  nor  district  rules  require  more  specific 
details. 

A  full  set  of  instructions  as  to  what  makes  a  valid  placer 
location  in  a  Territory  havjpg  at  that  time  no  specific  statute 
on  the  subject  is  found  in  Walton  v.  Wild  Goose  Co.,  123  F. 
209,  60  C.  C.  A.  155,  22  M.  R.  688. 


PLACEKS. 


279 


No  Reservation  Against  Patentee. 

When  patented  under  a  location  of  the  ground  as  a  "placer 
mining  or  stone  quarry  claim"  the  patentee  owns  all  minerals 
found  within  its  bounds  except  known  lodes. — Freezer  v. 
Sweeney,  8  Mont.  508,  21  P.  20,  17  M.  R.  179.  And  doubtless 
he  owns  to  the  same  extent  under  a  location  before  patent 
subject  to  the  right  to  locate  lode  discoveries  over  the  same 
ground,  and  except  lodes  apexing  outside  but  dipping  under- 
neath. 

Homestead. 

Lands  located  and  used  as  a  placer  and  also  used  as  a  resi- 
dence by  the  owner,  may  be  selected  by  him  as  a  homestead, 
under  the  State  law  of  exemptions,  the  question  of  title  in 
the  United  States  being  excluded. — Gaylord  v.  Place,  98  Cal. 
472,  33  P.  484. 

Nelson  v.  Brownell,  193  F.  641,  113  C.  C.  A.  509,  declares 
the  procedure  in  contest  between  homesteader  and  mineral 
claimant  in  Alaska. 

Area  in  Feet  or  Acres. 

By  the  following  table  the  number  of  feet  necessary  to 
include  any  desired  number  of  acres  when  in  the  shape  of  a 
square  or  parallelogram  may  be  ascertained : 


Cla 

m         660 

330       feet  contains         5        acres. 

500 

500 

5.73 

660 

660 

10 

1320 

660 

20 

800 

1089 

20 

933% 

9331/3 

20 

1320 

1320 

40 

2640 

2640 

160 

43,560  square  feet  equal  one  acre.    A  square  208.71  feet  in  length  and 

width  makes  one  acre. 

280  PLACER  CONTAINING  LODE. 

PLACER  CONTAINING  LODE. 


Claim  Intersected  by  Lode. 

E.  S.  Sec.  2333. — Where  the  same  person,  association  or  corporation  is 
in  possession  of  a  placer-claim,  and  also  a  vein  or  lode  included  within 
the  boundaries  thereof,  application  shall  be  made  for  a  patent  for  the 
placer-claim,  with  the  statement  that  it  includes  such  vein  or  lode,  and  in 
such  case  a  patent  shall  issue  for  the  placer-claim,  subject  to  the 
provisions  of  this  chapter,  including  such  vein  or  lode,  upon  the  payment 
of  five  dollars  per  acre  for  such  vein  or  lode  claim,  and  twenty-five  feet  of 
surface  on  each  side  thereof.  The  remainder  of  the  placer-claim,  or  any 
placer-claim  not  embracing  any  vein  or  lode-claim,  shall  be  paid  for  at 
the  rate  of  two  dollars  and  fifty  cents  per  acre,  together  with  all  costs  of 
proceedings;  and  where  a  vein  or  lode,  such  as  is  described  in  section 
twenty-three  hundred  and  twenty,  is  known  to  exist  within  the  boundaries 
of  a  placer  claim,  an  application  for  a  patent  for  such  placer-claim  which 
does  not  include  an  application  for  the  vein  or  lode  claim  shall  be  con- 
strued as  a  conclusive  declaration  that  the  claimant  of  the  placer-claim 
has  no  right  of  possession  of  the  vein  or  lode  claim;  but  where  the 
existence  of  a  vein  or  lode  in  a  placer-claim  is  not  known,  a  patent  for  the 
placer-claim  shall  convey  all  valuable  mineral  and  other  deposits  within 
the  boundaries  thereof. — Sec.  11,  May  10,  1872. 

Known  Lodes  Excluded. 

An  application  for  patent  to  a  placer  claim  is  not  sup- 
posed to  include  any  known  lode  running  through  it,  unless 
such  lode  is  owned  by  the  applicant  and  especially  designated 
in  the  application,  but  the  patent  when  issued  covers  any 
after  discovered  lode. — O'Keefe  v.  Cannon,  52  F.  898. 

The  placer  patentee  acquires  no  title  to  lodes  known  to 
exist  prior  to  and  not  included  in  his  application. — Clary  v. 
Hazlitt,  67  Cal.  286,  7  P.  701. 

The  exception  of  known  lodes  does  not  apply  to  placer  pat- 
ents issued  on  entries  prior  to  May  10,  1872. — Cranes  G.  Co. 
v.  Scherrer,  134  Cal.  350,  86  Am.  St.  Rep.  279,  66  P.  487,  21 
M.  R.  549. 

"What  is  a  known  lode  is  a  question  for  the  jury.  If  such 
a  lode  exists  it  is  locatable  over  the  patented  ground. — Noyes 
v.  Clifford,  94  P.  842,  37  Mont.  138. 


PLACER  CONTAINING  LODE.  281 

Kift  v.  Mason,  42  Mont.  232,  112  P.  392,  seems  to  hold  that 
the  burden  of  proof  of  prior  discovery  of  the  alleged  known 
lode  is  on  the  lode  claimant  and  such  is  undoubtedly  the  rule 
on  general  principles. 

No  statute  of  limitations  runs  against  the  assertion  of  a 
known  lode.  A  decision  that  the  claimant  has  not  proved  a 
known  lode  is  not  res  adjudicata  as  to  any  other  claimant. — 
Barnard  Co.  v.  Nolan,  215  F.  996.  , 

What  Are  Known  Lodes. 

Where  a  lode  within  the  placer  lines  has  been  discovered, 
located  and  recorded,  and  has  kept  up  its  labor  to  the  time  of 
the  placer  application,  it  is  clear  that  such  is  a  ''known  lode" 
beyond  any  possible  danger  of  construction. 

But  lodes  which,  though  known,  have  not  been  considered 
worth  locating,  or  after  location  have  been  abandoned,  or 
where  they  have  been  known  as  a  matter  of  common  knowl- 
edge to  be  within  the  lines,  as  in  the  case  of  outcrops  not 
considered  worth  working,  are  not  such  known  lodes  as  are 
excluded  from  a  placer  patent. — McConaghy  v.  Doyle,  32  Colo. 
92,  75  P.  419;  Barnard  Co.  v.  Nolan,  215  F.  996. 

A  placer  application  was  adversed  by  two  lodes,  but  won 
the  adverse  suits,  and  its  patent  issued.  Held,  that  this  was  no 
adjudication  of  the  non-existence  of  a  known  lode  even  within 
the  area  in  conflict  with  the  adversing  lodes  as  against  parties 
not  claiming  under  the  defeated  lodes. — Butte  Co.  v.  Herri- 
man,  32  Mont.  402, 108  Am.  St.  Rep.  590,  80  P.  675. 

Known  But  Not  of  Known  Value. 

It  has  been  held  with  much  reason  that  a  lode  or  vein 
though  known  to  exist  but  having  no  such  value  as  would  jus- 
tify its  exploration  or  working,  or  by  like  expression  to  the 
same  effect — is  not  within  the  *  exception  of  the  patent. — 
O'Kecfe  v.  Cannon,  52  F.  898;  Brownfield  v.  Bier,  15  Mont. 
403,  39  P.  461 ;  Butte  Co.  v.  Sloan,  16  Mont.  97,  40  P.  217.  It 
must  be  a  lode  of  known  practical  value  for  working. — Mon- 


282  PLACER  CONTAINING  LODE. 

tana  Cent.  R.  Co.  v.  Migeon,  68  F.  811;  Migeon  v.  Montana 
C.  R.  Co.,  77  F.  249,  23  C.  C.  A.  156,  18  M.  R.  446;  Casey  v. 
Thieviege,  19  Mont.  341,  61  Am.  St.  Rep.  511,  18  M.  R.  624, 
48  P.  394.  But  it  need  not  show  pay  ore  in  sight. — Mason  v. 
Washington  Co.,  214  F.  32,  33, 130  C.  C.  A.  426. 

The  allegation  in  an  answer  that  there  were  no  known  de- 
posits of  sufficient  value  to  pay — is  a  proper  plea  of  no  known 
lades  and  does  not  state  a  conclusion  of  law. — 0  'Keefe  v.  Can- 
non, 52  F.  898. 

Known  But  Not  Recorded. 

It  was  held  in  Noyes  v.  Mantle,  127  U.  S.  348,  32  L.  Ed.  168, 
8  Sup.  Ct.  Rep.  1132,  15  M.  R.  611,  that  a  located  claim  was  a 
known  lode.  But  in  Iron  Silver  Co.  v.  Mike  &  Starr  Co.,  143  U. 
S.  394, 430,  36  L.  Ed.  201, 12  Sup.  Ct.  Rep.  543,  17  M.  R.  436, 
the  Supreme  Court  go  further  and  hold  that  it  is  sufficient  to 
exclude  it  that  it  be  a  lode  known  to  exist,  and  that  where  a 
lode  had  been  notoriously  cut  in  a  tunnel  within  the  claim,  it 
was  such  a  disclosure  of  the  vein  as  to  bind  the  patentee  to  a 
knowledge  of  it.  And  while  holding  (p.  404)  that  not  every 
outcrop  or  crevice  suggesting  mineral  would  constitute  a 
known  lode  within  the  class  to  be  excepted,  yet  any  vein  dis- 
closed and  understood  to  be  of  value  was  excluded,  and 
whether  a  vein  was  known  and  was  of  such  character  as  to  be 
excluded  was  a  question  of  fact  for  nisi  prius  decision  by 
jury. 

The  mere  fact  that  a  lode  record  has  been  made  over  the 
ground  now  claimed  as  placer  does  not  prove  that  there  was 
a  vein  on  which  to  record. — 23  L.  D.  476 ;  Butte  Co.  v.  Sloan, 
16  Mont.  97,  40  P.  217.  And  when  the  issue  of  lode  or  no  lode 
has  been  left  on  conflicting  evidence  to  the  jury  the  Court  will 
not  set  their  finding  aside. — Id. 

A  lode  known  to  exist  before,  may  be  located  after,  the 
patent  issues;  and  it  is  known  to  exist  when  the  patentee 
knew  of  it,  when  it  was  matter  of  general  knowledge  or  when 
an  examination  of  the  ground  should  have  disclosed  it,  but 


PLACER  CONTAINING  LODE.  283 

lodes  so  low  in  assay  as  not  to  be  workable  are  not  excepted 
whether  known  or  not. — Mutchmor  v.  McCarty,  149  Gal.  603, 
87  P.  85. 

To  Whom  Known. 

In  the  Mike  &  Starr  case  it  was  held  that  it  must  be  known 
to  the  applicant  or  to  the  community  in  general.  If  obvious 
to  casual  inspection,  knowledge  was  chargeable  to  the  owner. 
But  a  lode  discovered,  located  and  of  record  before  the  patent 
application,  is  a  known  lode  whether  or  not  the  patentee  had 
knowledge  of  it.— Noyes  v.  Mantle,  127  U.  S.  348,  32  L.  Ed. 
168,  8  Sup.  Ct.  Rep.  1132,  15  M.  R.  611. 

In  the  case  of  Reynolds  v.  Iron  Silver  Co.,  116  U.  S.  687, 
29  L.  Ed.  774,  6  Sup.  Ct.  Rep.  601,  15  M.  R.  591,  the  Court 
ruled  that  the  lode  in  or  underlying  the  Wells  &  Moyer  placer 
being  shown  to  be  known  to  the  applicants,  could  not  be 
recovered  by  them  in  ejectment  as  against  adjoining  lode  own- 
ers who  had  worked  beyond  their  side  lines  into  the  deposit. 

Date  of  Discovery  Material. 

It  had  been  held  that  the  lode  (to  be  an  excepted  known 
lode)  must  be  discovered  before  entry  but  the  date  of  applica- 
tion is  now  the  conceded  date. — Dahl  v.  Raunheim,  132  U.  S. 
260,  33  L.  Ed.  324,  10  Sup.  Ct.  Rep.  74,  16  M.  R.  214;  Mike  & 
Starr  case,  supra. 

The  application  referred  to  is  the  application  upon  which 
the  patent  ultimately  issues  and  the  date  of  application  is 
the  date  of  filing  the  paper  "M"  (post  p.  560)  in  the  course 
of  proceedings  to  obtain  patent. 

A  lode  patent  issued  over  prior  patented  placer  ground  is 
no  evidence  of  priority. — Clark  Co.  v.  Ferguson,  218  F.  959. 

Necessity   of   Adverse   or   Protest — Patenting   Lode    Over 
Placer. 

If  a  known  lode,  whether  held  by  strangers,  or  not  located 
at  all,  though  known  to  exist,  is  under  the  express  terms  of  the 
statute  as  recognized  by  many  decisions  excepted  from  the 


284  PLACER  CONTAINING  LODE. 

grant — it  would  seem  a  necessary  deduction  that  it  need  not 
file  any  adverse  claim  to  preserve  its  rights.  But  if  it  be 
neglected  either  to  procure  an  exclusion  from  the  placer 
survey  or  to  adverse  and  the  placer  patent  issues,  the  Land 
Office  will  not  as  of  course  entertain  an  application  to  patent 
the  lode.  Before  the  application  will  be  received  it  requires 
a  hearing  in  the  local  Land  Office  after  notice  to  the  placer 
patentee  as  to  whether  in  fact  the  lode  was  known  to  exist, 
and  unless  upon  such  hearing  the  fact  is  affirmatively  so 
found,  it  denies  the  application. — South  Star  lode,  20  L.  D. 
204;27/d  676. 

If  the  finding  is  that  the  lode  was  known,  the  placer  pat- 
entee is  still  at  liberty  to  contest  the  lode  application  by  show- 
ing and  securing  a  judicial  determination  upon  verdict  that 
the  lode  was  not  known  to  exist. — Alice  M.  Co.  v.  Street,  U.  S, 
Circuit  Court,  Denver,  unreported. 

Where  the  placer  had  been  adversed  by  a  lode  claim,  the 
placer  winning,  it  is  res  adjudicata  that  such  lode  was  not 
excluded  from  the  placer  patent. — Mason  v.  Washington  Co., 
214  F.  32,  33,  130  C.  C.  A.  426. 

The  practice  of  the  Land  Office  has  not  been  uniform  upon 
this  point,  and  for  some  years  prior  to  the  South  Star  case 
it  had  refused  all  applications  to  enter  lode  claims  over 
placers  except  by  consent  of  the  placer  patentee  on  the  ground 
that  the  ex  parte  proof  of  no  known  lodes  originally  made  by 
the  applicant  definitely  established  the  non-existence  of  known 
lodes.  And  yet,  in  instances  a  patent  to  both  lode  and  placer 
had  been  granted,  as  in  Iron  S.  Co.  v.  Campbell,  135  U.  S. 
286,  34  L.  Ed.  155,  10  Sup.  Ct.  Rep.  765,  16  M.  R.  218.  In 
that  case  each  party  having  his  proof  of  legal  title  in  the 
shape  of  a  patent,  the  question  of  priority  was  held  to  be  an 
extrinsic  fact  to  be  found  and  settled  by  the  jury  under  the 
instructions  of  the  Court. 

The  patent  is  held  conclusive  evidence  that  the  land  con- 
veyed was  placer  ground. — DaJil  v.  Raunheim,  132  U.  S.  260, 
33  L.  Ed.  324,  10  Sup.  Ct.  Rep.  74,  16  M.  R.  214;  Butte  Co.  i: 
Sloan,  16  Mont.  97,  40  P.  217.  There  are  expressions  in  both 


PLACER  CONTAINING  LODE.  285 

these  opinions  which,  taken  by  themselves,  would  read  that 
the  patent  was  conclusive  proof  that  no  lode  existed,  but  to 
so  decide  on  consideration  of  the  whole  case  was  evidently  not 
the  intention  of  the  Court. 

The  practical  conclusion  from  this  vexed  state  of  the  title, 
arising  from  the  unwise  reservation  from  a  government  grant 
of  a  piece  of  land  with  no  defined  bounds  and  even  without 
acknowledged  existence,  is  that  a  lode  within  placer  lines 
should  assert  itself  by  adverse  against  the  placer  application 
at  the  outstart,  so  as  to  avoid  subsequent  departmental  inquiry. 
—26  L.  D.  573 ;  27  Id.  676.  And  where  the  application  is  by 
the  lode  claimant  over  a  prior  placer  patent,  the  safe  course  is 
for  the  placer  to  adverse  if  the  facts  exist  upon  which  to 
contest  the  title  of  the  lode  claimant. 

Proof  of  Known  Lode  by  Contiguity. 

Running  a  lode  survey  over  placer  lines  raises  no  inference 
that  the  vein  enters  within  them. — Raunheim  v.  Dahl,  6  Mont. 
167,  9  P.  892 ;  Dald  v.  Raunheim,  132  U.  S.  260,  33  L.  Ed.  324, 

10  Sup.  Ct.  Rep.  74,  16  M.  R.  214,  26  L.  D.  622.    Nor  is  it 
sufficient  that  quite  a  number  of  shafts  sunk  elsewhere  in  the 
district  disclosed  horizontal  deposits  which  might  be  parts  of 
a  vein  of  continuous  extension  through  all  that  territory. — 
Sullivan  v.  Iron  Silver  Co.,  143  U.  S.  431,  36  L.  Ed.  214,  12 
Sup.  Ct.  Rep.  555.    Nor  does  the  granting  of  a  patent  subse- 
quent to  the  placer  patent  over  the  placer  ground  raise  any 
conclusive  presumption.     The  question  in  such  case  is  then 
an  extrinsic  issue  dependent  on  proof. — Iron  Silver  Co.  v. 
Campbell,  135  U.  S.  286,  34  L.  Ed.  155,  10  Sup.  Ct.  Rep.  765, 
16  M.  R.  218,  25  L.  D.  460. 

Locating  Lode  Within  Placer. 

The  placer  owner,  or  a  stranger  with  his  consent,  may  locate 
a  lode  claim  within  the  placer  survey. — McCarthy  v.  Speed, 

11  S.  D.  362,  50  L.  R.  A.  184,  77  N.  W.  590,  19  M.  R,  615. 
And  doubtless  the  discoverers  without  such  owner's  consent 


286  PLACER  CONTAINING  LODE. 

by  peaceable  entry  may  make  such  location. — 2  Lindley,  Sec. 
413. 

It  has  been  held  that  no  third  party  can  enter  within  the 
lines  of  a  placer  location  to  prospect  for  lodes.  And  if  he 
does  so  enter,  discover  and  locate  a  lode,  it  is  a  claim  initiated 
by  trespass  and  is  void.— Clipper  Co.  v.  Eli  Co.,  194  U.  S.  220, 
48  L.  Ed.  944,  24  Sup.  Ct.  Rep.  632. 

This  practically  gives  all  blind  lodes  to  the  placer  owner 
and  thereby  defeats  the  intent  of  the  Act  of  Congress.  But 
it  is  within  the  limits  of  judicial  construction  and  is  therefore 
a  binding  authority  to  the  extent  of  the  decision.  But  it  does 
not  go  to  the  extent  of  preventing  an  entry  to  locate  upon  a 
visible  outcrop ;  nor  can  a  placer  location  be  so  made  as  to 
cover  the  lode  formation  unless  it  is  properly  placer  ground 
and  has  a  valid  existence  as  a  bona  fide  placer  claim. — Searle 
Placer,  11  L.  D.  441.  .-X* 

Where  the  claim  is  a  placer  alleged  to  carry  gold,  it  should 
be  gold  that  can  be  "secured  with  profit." — United  States  v. 
Iron  S.  Co.,  128  U.  S.  684,  32  L.  Ed.  571,  9  Sup.  Ct.  Rep.  195. 

In  contest  between  a  placer  claim  and  an  older  lode  title 
which  the  placer  lines  enclosed,  the  burden  of  proof  is  on  the 
placer  to  show  that  there  was  no  such  metallic  vein  as  justified 
a  lode  location.— Bevis  v.  Markland,  130  F.  226. 

Width  of  Such  Lode  Claim. 

Where  the  location  of  the  lode  is  made  within  the  bounds 
of  the  placer  location,  and  after  the  date  of  the  placer  loca- 
tion, it  has  been  held  that  the  lode  claimant  is  restricted  to 
fifty  feet  in  width.— Mt.  Rosa  Co.  v.  Palmer,  26  Colo.  56,  77 
Am.  St.  Rep.  245,  50  L.  R.  A.  289,  56  P.  176,  19  M.  R.  696. 
But  where  the  lode  was  not  only  known  to  exist,  but  Avas  a 
valid  location  prior  to  a  placer  location,  the  lode  is  entitled  to 
its  full  width  as  staked  against  the  placer  locator  or  patentee. 
—Noyes  v.  Mantle,  127  U.  S.  348,  32  L.  Ed.  168,  8  Sup.  Ct. 
Rep.  1132, 15  M.  R.  611.  See  28  L.  D.  41 ;  32  Id.  513. 


TAILINGS.  £87 

TAILINGS. 


Each  Claim  Must  Take  Care  of  Its  Own. 

R.  8.  Colo.  See.  4214. — In  no  case  shall  any  person  or  persons  be 
allowed  to  flood  the  property  of  another  person  with  water,  or  wash  down 
the  tailings  of  his  or  their  sluice  upon  the  claim  or  property  of  other 
persons,  but  it  shall  be  the  duty  of  every  miner  to  take  care  of  his  own 
tailings,  upon  his  own  property,  or  become  responsible  for  all  damages 
that  may  arise  therefrom. — Sec.  9,  Nov.  7, 1861. 

The  Relation  of  One  Claim  to  Another  Where  Both  Are 

situate  in  the  same  gulch  or  on  the  same  waterflow  was  sought 
to  be  regulated  by  the  above  section  passed  at  an  early  date 
which  fixed  in  terms  a  matter  of  long  continued  dispute  in 
California.  The  tendency  of  the  later  decisions  is  to  the 
effect  that  the  upper  claim  can  not  justify  covering  up  the 
lower  claim  on  the  plea  of  either  custom,  priority  or  neces- 
sity.—Lincoln  v.  Eodgers,  14  M.  R.  79,  1  Mont.  217;  Fitz- 
patrick  v.  Montgomery,  20  Mont.  181,  63  Am.  St.  Rep.  622,  50 
P.  416. 

The  extent  to  which  the  miner  may  foul  the  water  and  his 
duty  to  impound  are  discussed  in  Provolt  v.  Bailey,  62  Or.  58, 
121  P.  961. 

Upper -and  Lower  Claim  in  Same  Gulch. 

Notwithstanding  the  above  Act  or  similar  local  legislation 
elsewhere,  the  natural  invitation  of  the  stream  to  utilize  its 
current  is  a  temptation  too  potent  to  be  resisted.  No  placer, 
barring  exceptional  instances,  can  be  conveniently  worked 
without  encroaching  more  or  less  upon  the  claims  below.  This 
lv»ads  on  the  one  side  to  trespass,  on  the  other  side  to  conces- 
sions, and  their  relations  thus  become  involved  with  questions 
of  license,  contract  and  estoppel. 

The  legal  right  of  the  claim  to  be  exclusively  enjoyed  by 
its  own  occupant  is  plain  with  or  without  the  aid  of  the 
Statute,  subject  to  such  considerations  as  courts  of  equity 


288  TAILINGS. 

will  give  to  the  hardship  of  denying  the  use  of  a  natural  out- 
let to  a  claim  so  situate  to  its  neighbors  on  the  stream  below 
that  its  use  of  the  stream  is  a  physical  necessity.  The  upper 
claim  is  therefore  not  denied  the  right  to  rush  its  tailings 
across  the  lower  claim  if  they  are  not  allowed  to  lodge  upon 
such  claim. 

Slight  Injury  to  Lower  Claims. 

The  owner  is  not  liable  for  pollution  of  stream  incidental 
to  placer  mining,  or  to  washing  iron  ore.  It  is  classed  among 
non-actionable  injuries.  Nor  will  such  use  of  the  stream  be 
enjoined  even  if  an  action  lies,  except  in  willful  or  extreme 
eases.— Clifton  Co.  v.  Dye,  87  Ala.  468,  6  So.  192 ;  Hill  v.  King, 
4  M.  R.  533,  8  Cal.  337 ;  Atchison  v.  Peterson,  1  M.  E.  583,  20 
Wall.  507,  22  L.  Ed.  414. 

But  a  material  injury  will  be  prevented  by  writ  or  compen- 
sated by  damages. — Columbus  Co.  v.  Tucker,  48  Ohio  St.  41, 
29  Am.  St.  Rep.  528,  12  L.  R.  A.  577,  26  N.  E.  630;  Tennessee 
Co.  v.  Hamilton,  100  Ala.  252,  46  Am.  St.  Rep.  48,  14  So.  167 ; 
Drake  v.  Lady  Ensley  Co.,  102  Ala.  501,  48  Am.  St.  Rep.  77, 
24  L.  R.  A.  64,  14  So.  749  j  Hindson  v.  Markle,  33  Atl.  74,  171 
Pa.  138. 

Injunctive  Relief  Against  Deposit  Of. 

Where  there  is  neither  license  nor  the  protection  of  a  prior 
location  for  tailing  purposes  and  the  ground  below  has  been 
taken  up  by  other  parties,  it  is  plain  that  the  upper  can  not 
lawfully  use  the  lower  claim  as  a  place  of  deposit. — Fuller  v. 
Swan  River  Co.,  16  M.  R.  252,  12  Colo.  12,  19  P.  836;  Chees- 
man  v.  Hale,  31  Mont.  577,  3  Ann.  Gas.  1038,  68  L.  R.  A.  410, 
79  P.  254.  To  do  so  would  be  an  invasion  of  the  legal  rights 
of  the  lower  claimant  for  which  he  might  recover  damages,  but 
it  does  not  follow  that  in  every  case  the  courts  would  interfere 
to  restrain  the  upper  claimant  by  injunction. 

And  if  the  lower  claims  could  be  shown  to  have  been  located 
or  purchased  for  any  purpose  of  annoyance  to  the  upper 


TAILINGS.  289 

claims,  the  want  of  equity  in  such  case  upon  an  application  for 
injunction  would  be  manifest. — Edwards  v.  Allouez  M.  Co.,  1 
M.  R.  577,  38  Mich.  46,  31  Am.  Rep.  301.  Placer  company 
enjoined  at  suit  of  water  works  against  fouling  stream. — 
Travis' Co.  v.  Mills,  94  F.  909,  37  C.  C.  A.  536.  At  suit  of  the 
county  as  a  public  nuisance. — Tuba  County  v.  Kate  Hayes  Co., 
141  Cal.  360,  74  P.  1049 ;  Butter  County  v.  Nicols,  93  P.  872, 
152  Cal.  688,  14  Ann.  Gas.  900,  15  L.  R.  A.  (N.  S.)  616. 

The  incidental  flow  of  mud  and  fine  tailings  not  sufficient  to 
accumulate  as  deposit,  but  affecting  only  the  character  of  the 
water  or  causing  but  slight  damage,  if  an  injury  at  all,  is  not 
such  as  to  be  interfered  with  by  injunction. — Atchison  v. 
Peterson,  supra;  United  States  v.  N.  Bloomfield  Co.,  53  F.  625, 
631. 

An  injunction  against  tailings  will  not  issue  where  there  is 
a  remedy  at  law  and  the  injunction  would  result  in  the  dis- 
charge of  a  great  number  of  employees. — McCarthy  v.  Bunker 
Hill  Co.,  147  F.  981. 

Where  a  coal  company  could  by  reasonable  outlays  prevent 
stream  pollution  a  preliminary  injunction  should  be  allowed. 
—Roaring  Creek  Co.  v.  Anthracite  Co.,  212  Pa.  115,  61  Atl. 
811. 

A  boom  ditch  was  enjoined  in  Carson  v.  Hayes,  39  Or.  97, 
65  P.  814,  and  hydraulics  in  York  v.  Davidson,  39  Or.  81,  65 
P.  819,  21  M.  R.  452. 

Complaint  for  damage  from  tailings  and  stream  pollution 
set  forth  at  length  and  held  sufficient. — Hill  v.  Standard  M. 
Co.,  12  Ida.  223,  85  P.  907. 

Joint  Contribution  to  Injury. 

Where  several  mills  or  mines  contribute  to  the  common 
injurious  result,  they  may  be  sued  jointly  where  injunctive 
relief  is  asked,  but  for  damages  must  be  sued  separately,  and 
where  several  neighboring  plaintiffs  suffer  a  common  injury 
they  may  join  in  the  equity  proceeding,  but  in  an  action  for 
damages  each  party  must  sue  and  defend  separately. — Madison 


290  TAILINGS. 

v.  Ducktoivn  Sulphur  Co.,  113  Term.  331,  83  S.  W.  658;  War- 
ren v.  Parkhurst,  45  Misc.  466,  92  N.  Y.  S.  725 ;  Strobel  v.  Kerr 
Salt  Co.,  164  N.  Y.  303,  79  Am.  St.  Rep.  643,  51  L.  R.  A.  687, 
58  N.  E.  142,  21  M.  R.  38;  Watson  v.  Colusa-Parrot  Co.,  31 
Mont.  513,  79  P.  14;  Norton  v.  Colusa  P.  M.  S.  Co.,  167  P.  202. 

But  this  distinction  is  not  always  made  and  in  some  States 
they  are  held  jointly  liable  in  damages. — Day  v.  Louisville  C. 
Co,.  60  W.  Va.  27,  10  L.  R.  A.  (N.  S.)  167,  53  S.  E.  776. 

In  Suiter  Co.  v.  Nicols,  93  P.  872,  152  Cal.  688,  14  Ann.  Gas. 
900,  15  L.  R.  A.  (N.  S.)  616,  the  discharge  of  tailings  into  a 
river  was  enjoined  as  a  nuisance. 

Necessities  of  the  Mine. 

The  general  ruling  is  that  the  fact  that  the  use  of  the 
stream  is  a  physical  necessity  to  enjoy  the  mine  or  well  is  no 
defense. — Bowling  Co.  v.  Ruffner,  117  Tenn.  180,  10  Ann.  Gas. 
581,  9  L.  R.  A.  (N.  S.)  923,  100  S.  W.  116;  Straight  v.  Hover, 
79  Ohio  St.  263,  22  L.  R.  A.  (N.  S.)  276,  87  N.  E.  174;  but 
there  are  cases  which  hold  that  the  rights  of  the  riparian 
owner  must  yield  to  the  business  interests  of  the  country. — 
Ohio  Oil  Co.  v.  Westfall,  43  Ind.  App.  661,  88  N.  E.  354; 
Barnard  v.  Sherley,  135  Ind.  547,  41  Am.  St.  Rep.  454,  24 
L.  R.  A.  568,  34  N.  E.  600,  35  N.  E.  117. 

Tailings  Are  Property  of  the  Miner  Who  Made   Them, 

so  long  as  retained  on  his  own  land  or  under  his  control  and 
not  abandoned. — Jones  v.  Jackson,  9  Cal.  237,  14  M.  R.  72. 
"When  allowed  to  flow  upon  the  land  of  another  he  becomes 
entitled  to  them. — Id.  They  belong  to  the  lessee  for  the  time 
being — but  not  after  he  has  ceased  acts  of  ownership. — 
Erwin's  App.,  16  M.  R.  91,  (Pa.)  12  Atl.  149.  Mill  tailings, 
when  not  abandoned.— Goldfield  Co.  v.  Old  Co.,  38  Nev.  426, 
150  P.  313. 

Location  of  Dump  Ground, 

It  has  been  held  in  Jones  v.  Jackson,  supra,  that  a  reasonable 
amount  of  ground  below  a  mining  claim  proper  may  be  located 


TAILINGS.  291 

as  a  dump  or  place  of  deposit  for  tailings.  The  same  case  holds 
that  mere  posting  of  notice  would  not  be  sufficient  to  hold  such 
ground.  We  would  advise  as  strict  a  location,  including  stak- 
ing, notice  and  record,  as  should  be  made  in  the  case  of  the 
location  of  the  mining  or  ditch  claim,  to  which  such  tailings 
claim  may  be  appurtenant.  In  the  nature  of  things  the 
boundaries  of  such  a  claim  also  would  be  strictly  confined  to 
the  absolute  needs  of  the  upper  claim;  nor  do  we  consider 
that  such  located  easement  would  hold  indefinitely  without 
user.  It  is  a  claim  not  so  much  of  express  right  as  of  neces- 
sity. The  doctrine,  however,  that  an  easement  may  be  created 
on  public  land  is  distinctly  held  in  the  above  case,  and  in 
Lincoln  v.  Rodgers,  supra;  O'Keiffe  v.  Cunningham,  9  M.  R. 
451,  9  Cal.  589.  In  Miser  v.  O'Shea,  37  Or.  231,  82  Am.  St. 
Rep.  751,  62  P.  491,  such  right  is  expressly  denied. 

A  deposit  of  valuable  tailings  on  public  land  will  be  pro- 
tected against  an  attempt  to  locate  the  same  as  a  placer. — 
Bitter  v.  Lynch,  123  F.  930.  The  word  "tailings"  by  usage 
of  the  parties  construed  to  include  "slag." — Suite  Co.  v.  Mon- 
tana Co.,  121  F.  524,  58  C.  C.  A.  634. 

Mill  Tailings. 

A  mill  owner,  though  the  prior  appropriator,  has  no  right 
to  flow  tailings  into  a  stream  when  at  slight  cost  they  could  be 
so  impounded  as  not  to  materially  foul  the  water. — Suffolk  Co. 
v.  San  Miguel  Co.,  9  Colo.  App.  407,  48  P.  828.  A  mill  will  not 
be  allowed  to  so  pollute  the  water  as  to  render  it  unfit  for  use 
by  prior  irrigation  appropriators. — Montana  Co.  v.  Gehring, 
75  F.  384,  385,  21  C.  C.  A.  414. 

The  rights  and  duties  of  two  mills  using  the  same  water, 
one  above  and  one  below,  are  fairly  stated  in  Otaheite  Co.  v. 
Dean,  102  F.  929,  20  M.  R.  688. 

Location  Upon  Deposits  of  Tailings. 

Vacant  land  upon  which  tailings  have  been  deposited  may 
be  claimed  and  worked  the  same  as  land  containing  natural 


292  TAILINGS. 

deposits,  and  trespass  maintained  by  the  claimant  against  a 
party  carrying  away  such  tailings. — Rogers  v.  Cooney,  14 
M.  R.  85,  7  Nev.  213. 

A  party  may  take  up  a  claim  for  mining  purposes  which 
has  been  and  still  is  used  as  a  place  of  deposit  for  tailings  by 
another — but  in  such  case  his  mining  right  would  be  sub- 
servient to  the  prior  right  of  deposit. — O'Keiffe  v.  Cunning- 
ham, supra.  On  the  other  hand,  the  right  to  dump  may  be  lost 
by  allowing  the  mining  claimant  to  hold  exclusive  adverse 
possession.— Mclaughlin  v.  Del  Re,  71  Cal.  230, 16  P.  881. 

The  Debris  Cases. 

On  the  plea  of  interference  with  navigable  waters  the  United 
States  has,  on  the  San  Joaquin  and  Sacramento  Rivers,  in 
California,  prohibited  all  hydraulic  mining,  except  under  gov- 
ernment license  and  regulation.  The  Act  of  1893  (27  St.  L. 
507.  Amended,  1907,  34  St.  L.  1001)  makes  such  mining  a 
misdemeanor  unless  carried  on  by  federal  supervision.  This 
Act  and  the  decisions  under  it  are  the  final  outcome  of  what 
SAWYER,  J.,  candidly  calls  "a  suit  between  the  mining  counties 
and  the  valley  counties." — Woodruff  v.  North  Bloomfield  Co., 
18  F.  753,  792,  9  Sawy.  441.  There  are  obvious  constitutional 
points  arising  out  of  such  an  act,  but  it  has  been  thus  far 
sustained.— United  States  v.  N.  Bloomfield  Co.,  81  F.  243; 
North  Bloomfield  Co.  v.  United  States,  88  F.  664,  32  C.  C.  A. 
84;  Suiter  County  v.  Nicols,  93  P.  872,  152  Cal.  688,  14  Ann. 
Cas.  900,  15  L.  R.  A.  (N.  S.)  616. 

The  reference  to  this  Act  and  to  the  opinion  in  88  Federal 
Reporter,  renders  it  unnecessary  to  further  cite  the  numerous 
cases  almost  uniformly  adverse  to  the  miner,  which  led  up  to 
it.  Some  of  them  were  so  harsh  as  to  suggest  that  judicial 
power  had  reached  its  limits. — 9th  Ed.  p.  182. 

Smelter  Fumes. 

Injunction  refused  against  smelter  fumes  destroying  timber, 
and  plaintiff  left  to  its  remedy  at  law  for  damages. — Mountain 
Copper  Co.  v.  United  States,  142  F.  625,  73  C.  C.  A.  621. 


NUISANCE.  293 

Injunction  against  smelter  fumes  refused  if  defendant  pay 
actual  damages.  Comparative  values  of  the  investment  and 
the  property  injured  considered. — McCleery  v.  Highland  Boy 
Co.,  140  F.  951. 

Smelter  continued  under  injunction  after  enormous  expendi- 
tures toward  suppressing  the  fumes. — Georgia  v.  Tennessee 
Copper  Co.,  237  U.  S.  474,  59  L.  Ed.  1054,  35  Sup.  Ct.  Rep. 
631,  237  U.  S.  678,  59  L.  Ed.  1173,  35  Sup.  Ct.  Rep.  752,  240 
U.  S.  650,  60  L.  Ed.  — ,  36  Sup.  Ct.  Rep.  465. 


NUISANCE. 


Analogous  to  the  last  heading  is  the  subject  of  actions 
against  smelters  for  destruction  of  crops  and  other  like 
injuries  by  noxious  fumes ;  the  pollution  of  streams,  etc.  The 
subject  is  fairly  considered  in  Madison  v.  Ducktown  Sulphur 
Co.,  113  Tenn.  331,  83  S.  W.  658,  which  goes  into  the  matter 
of  doing  justice  between  all  parties  where  the  injury  is  sub- 
stantial but  practically  non-preventable  without  undue  loss  to 
the  defendant.— McCleery  v.  Highland  Boy  Co.,  140  F.  951. 

The  statute  of  limitations  does  not  begin  to  run  until  the 
injury  is  complete. — Sterrett  v.  Northport  Co.,  30  Wash.  164, 
70  P.  266. 

Mine  enjoined  from  polluting  waters  of  stream  used  by 
distillery.— Young  v.  Bankier  Distillery,  L.  K.  (1893)  App.  C. 
691. 

The  pollution  of  a  fresh  water  stream  by  salt  well  was 
enjoined  in  Strolel  v.  Kerr  8.  Co.,  164  N.  Y.  303,  79  Am.  St. 
Rep.  643,  51  L.  R.  A.  687,  21  M.  R.  38,  58  N.  E.  142. 


294  MILL  SITES. 

MILL  SITES. 
Extent — How  Patented. 

R.  S.  Sec.  2337. — Where  non-mineral  land  not  contiguous  to  the  vein  or 
lode  is  used  or  occupied  by  the  proprietor  of  such  vein  or  lode  for  mining 
or  milling  purposes,  such  non-adjacent  surface-ground  may  be  embraced 
and  included  in  an  application  for  a  patent  for  such  vein  or  lode,  and 
the  same  may  be  patented  therewith,  subject  to  the  same  preliminary 
requirements  as  to  survey  and  notice  as  are  applicable  to  veins  or  lodes; 
but  no  location  hereafter  made  of  such  non-adjacent  land  shall  exceed 
five  acres,  and  payment  for  the  same  must  be  made  at  the  same  rate  as 
fixed  by  this  chapter  for  the  superficies  of  the  lode.  The  owner  of  a 
quartz-mill  or  reduction-works,  not  owning  a  mine  in  connection  there- 
with, may  also  receive  a  patent  for  his  mill-site,  as  provided  in  this 
section.— Sec.  15,  Kay  10,  1872. 

Location  and  Record. 

Mill  sites  are  located  by  posting  notice  and  staking  by  a  sub- 
stantial post  or  stake  at  each  angle,  which  ordinary  prudence 
would  require  to  be  inscribed  with  the  name  of  the  mill  site 
and  the  number  of  the  corner.  There  are  no  Congressional 
regulations  of  the  details  of  such  location,  but  its  record  should 
conform  to  the  requirements  applicable  to  the  record  of  all 
classes  of  claims,  to-wit,  that  it  contain  a  sufficient  description 
by  reference  to  natural  objects  or  permanent  monuments; 
which  terms  of  the  statute  are  no  more  than  a  statement  of 
what  is  required  as  a  matter  of  course  without  such  statute. 
In  other  words,  where  any  record  whatsoever  is  essential  to 
either  original  claim  or  conveyance,  it  must  contain  a  descrip- 
tion sufficient  to  identify  the  land  intended  to  be  described. 

In  Colorado  the  form  in  use  is  the  statutory  wording  pre- 
scribed for  all  cases  of  location  of  non-mineral  lands,  R.  S., 
Sec.  5124. 

Post  location  notice  at  some  conspicuous  point  on  the  claim, 
in  substance  as  follows : 


MILL  SITES.  295 

LOCATION  NOTICE. 

I  claim  the  Corinne  mill  site  as  staked  on  this  ground,  466  feet  square. 
Five  acres.  Date  of  location  January  2,  1906. 

THOMAS  W.  FITCH,  Ja. 

And  make  record  in  the  proper  county  of  the 

•    LOCATION   CERTIFICATE  OB1  MILL  SITE. 
TO    ALL    "WHOM    THESE    PRESENTS    MAY    CONCERN:       Know    ye    that    I, 

Thomas  W.  Fitch,  Jr.,  of  Pittsburgh,  County  of  Allegheny,  Common- 
wealth of  Pennsylvania,  do  hereby  declare  and  publish  as  a  legal  notice 
to  all  the  world  that  I  have  a  valid  right  to  the  occupation,  possession 
and  enjoyment  of  all  and  singular  that  tract  or  parcel  of  land,  not 
exceeding  five  acres,  situate,  lying  and  being  in  Pioneer  Mining  Dis- 
trict, in  the  County  of  Dolores,  in  the  State  of  Colorado,  bounded  and 
described  as  follows,  to- wit:  The  Corinne  mill  site,  beginning  at  cor- 
ner No.  1,  from  which  etc.  (description  continued)  to  the  place  of  begin- 
ning. 

Together  with  all  and  singular  the  hereditaments  and  appurtenances 
thereunto  belonging  or  in  anywise  appertaining. 

Witness  my  hand  and  seal  this  27th  day  of  January,  in  the  year  of 
our  Lord  one  thousand  nine  hundred  and  sixteen. 

THOMAS  W.  FITCH,  JR.    [SEAL.] 

For  form  of  acknowledgment  see  page  SIS. 

A  name  is  not  essential  to  a  mill  site,  but  it  is  convenient 
and  preferable  to  style  it  by  a  name. 

Location  and  record  should  be  accompanied  or  followed  by 
substantial  occupancy  or  valid  improvements.  The  digging  of 
a  ditch  is  not  the  location  of  a  mill  site.  "Land  is  appropri- 
ated by  one  character  of  acts,  water  by  another." — Robinson  v. 
Imperial  Co.,  10  At.  R.  370,  377,  5  Nev.  44. 

By  the  U.  S.  Law  They  Are  Limited  to  Five  Acres,  But 

by  the  district  regulations  were  sometimes  restricted  to  much 
less  extent. 

A  square  location  466.69x466.69  feet  contains  five  acres. 

They  Can  Not  Lawfully  Be  Located  on  Mineral  Land. 

—8  L.  D.  195;  18  Id.  105.  And  if  so  located  may  be  con- 
tested by  proceedings  in  the  Land  Office.— 5  L.  0.  51. 


296  MILL  SITES. 

The  location  of  a  mill  site  not  known  to  contain  mineral  at 
the  time  of  its  location  will  hold  against  a  lode  claim  based 
upon  a  discovery  after  the  mill  site  location  was  complete.  The 
finding  of  mere  nominal  lode  values  does  not  make  the  land 
mineral  in  character  at  any  time,  and  the  discovery  of  real 
mineral  values  will  not  destroy  a  mill  site  completely  located 
before  any  such  mineral  value  was  known. — Cleary  v.  Skiffich, 
28  Colo.  362,  89  Am.  St.  Kep.  207,  21  M.  R.  284,  65  P.  59. 

In  Hartman  v.  Smith,  1  Mont.  19, 14  P.  648,  it  was  held  that 
a  mill  site  was  a  mining  claim  and  as  such  excluded  from  a 
town  site  patent.  In  Cleary  v.  Skiffich,  28  Colo.  367,  89  Am. 
St.  Rep.  207,  65  P.  59,  21  M.  R.  284,  the  Court  says:  "A  mill 
site  is  a  mining  location."  In  the  latter  case  the  expression 
is  a  mere  introductory  clause.  But  to  chance  the  exclusion 
of  a  mill  site  claim  from  a  town  site  patent  on  the  forced  or 
technical  meaning  of  one  word,  would  be  to  assume  grave 
risk.  Bona  fide  prior  location  for  ranch  purposes  will  defeat 
a  mill  site. — Hamburg  Co.  v.  Stephenson,  17  Nev.  450,  30  P. 
1088. 

The  holder  of  a  lode  claim  who  bought  in  a  mill  site  to  pro- 
tect his  title  may  defend  his  rights  under  either  record. — 
Worthen  Mills  v.  Alaska  Co.,  229  F.  966. 

Two  Classes  of  Mill  Sites. 

The  latter  clause  of  Sec.  2337,  supra,  provides  for  patenting 
of  land  actually  occupied  by  a  mill,  but  the  former  and  more 
important  portion  of  the  section  provides  a  means  of  procuring 
surface,  area  to  cover  such  ground  as  may  be  used  in  any 
manner  incidental  to  the  mine. 

First  Class— Mill  Site  With  Lode. 

Congress  allows  to  each  lode  claimant  the  privilege  of  taking 
up  five  acres  of  ground,  upon  the  theory  that  such  additional 
surface  is,  or  may  be,  needed  either  incidentally  for  the  opera- 
tion of  the  mine  (storage  room,  boarding  houses,  miners' 
cabins,  ore  houses,  etc.)  or  indirectly  by  a  mill,  patio,  arastra, 


MILI*  SITES.  297 

or  other  works  for  treating  ore.  In  fact,  any  largely  operated 
mine  does  require  such  space,  if  not  more.  The  land  so  needed 
is  strictly  within  the  intent  of  the  law,  and  though  no  mill  may 
be  erected  or  contemplated,  such  area  of  surface  is  styled  a 
mill  site. 

The  land  taken  under  this  clause  must  be : 

1.  Non-mineral.  . 

2.  Non-contiguous  to  the  lode. 

3.  Used  or  occupied  by  the  owner  for  mining  or  milling 
purposes.— 13  L.  D.  175 ;  32  Id.  128 ;  34  Id.  325. 

1.  Non-Mineral. 

The  test  on  this  point,  following  analogous  rulings  between 
agricultural  and  mining  claims,  would  be :  Has  the  land 
greater  value  for  its  mineral,  or  for  surface  use  in  connection 
with  the  mine  ? — 13  L.  D.  86,  517. 

The  form  of  proof  of  such  non-mineral  character  is  by  the 
affidavits  of  disinterested  witnesses. 

2.  Contiguity. 

It  was  formerly  held  that  the  mill  site  must  be  non-contigu- 
ous to  the  lode,  or  to  any  line  of  its  survey.— 32  L.  Dl  128,  34 
L.  D.  320.  But  these  rulings  have  been  modified  to  the  extent 
of  allowing  a  mill  site  to  touch  a  side  line  of  the  lode  claim. — 
37  L.  D.  674.  Or  even  an  end  line  where  it  is  already  shown 
that  the  lode  does  not  reach  such  end  line. — 42  L.  D.  434. 

3.  What  Is  Sufficient  Use. 

The  building  on  the  land  of  a  pumping  plant  to  carry  water 
to  the  mine  is  a  sufficient  mining  use. — 11  L.  D.  338.  Or  stor- 
ing water  on  the  same  for  the  mine. — 13  Id.  175.  Use  for  stor- 
ing ores  or  for  tailings,  shops  or  houses  for  workmen. — 5  Id. 
192.  Or  for  houses  for  workmen  on  the  mill. — 14  Id.  173. 

The  use  of  a  cabin  on  the  land  for  storing  tools  was  held 
sufficient  in  Hartman  v.  Smith,  1  Mont.  19,  14  P.  648.  This 


298  MILL  SITES. 

case  practically  decides  that  the  ordinary  use  of  a  prospector's 
cabin,  wherever  it  may  be  located,  if  not  on  ground  contiguous 
to  the  lode,  is  enough  to  justify  the  claiming  of  the  site  of  the 
same  as  a  mill  site.  Cited  and  followed  in  Valcalda  v.  Silver 
Peak  Mines,  86  F.  90,  29  C.  C.  A.  591,  19  M.  R.  233,  42  L.  D. 
255. 

Insufficient  Use. 

The  mill  site  section  can  not  be  availed  of  to  patent  water 
rights  proper.— 6  L.  D.  706,  9  Id.  201,  12  Id.  624.  Or  for  the 
benefit  of  a  third  party. — 11  Id.  561.  The  benefit  must  be  to 
the  particular  lode  in  question. — 10  Id.  196. 

A  lode  owner  has  no  right  to  attach  to  his  patent  applica- 
tion, at  the  request  of  a  third  party,  an  independent  piece  of 
ground  as  a  mill  site. — Hamburg  Co.  v.  Stephenson,  17  Nev. 
449,  30  P.  1088. 

Land  for  its  timber  can  not  be  located  as  a  mill  site,  though 
the  timber  be  used  and  needed  at  the  mine. — 7  L.  D.  557. 
Timber  has  always  been  considered  as  a  mining  necessity,  and 
the  taking  of  it  for  such  purpose  clearly  puts  the  land  to  a 
mining  use. — Tartar  v.  Spring  Creek  Co.,  5  Cal.  395,  14  M.  R. 
371;  Wilson  v.  Smith,  5  Yerg.  (13  Tenn.)  379;  Findlay  v. 
Smith,  6  Munf.  (Va.)  134,  8  Am.  Dec.  733,  13  M.  R.  182.  But 
the  Land  Office  rulings  have  not  recognized  this  contention. 

A  boarding  house,  store,  saw  mill  and  wharf  held  insuf- 
ficient mining  use,  where  a  group  of  mill  sites  was  attempted 
to  be  patented  with  a  group  of  lodes. — 32  L.  D.  128. 

Second  Class— Mill  or  Reduction  Works. 

Under  this  class,  where  the  application  is  for  the  mill  site 
alone,  there  must  be  a  mill  or  reduction  works — incidental 
uses  are  not  sufficient.  That  the  site  contains  a  dam,  penstock 
and  pipes  for  driving  works  at  a  neighboring  mine  will  not 
answer. — 9  L.  D.  460,  29  Id.  143.  And  a  patent  will  not  issue 
to  give  additional  ground  to  a  mill  site  already  patented. — 12 
Id.  75.  Nor  on  two  adjoining  mill  sites  with  improvements  on 


MILL  SITES.  2C9 

the  line  between  them. — 14  Id.  11.  It  will  not  be  allowed  on 
the  strength  of  carrying  water  to  a  smelter  on  other  ground. 
—5  Id.  190. 

Separate  Application  for  Mill  Site. 

It  has  been  ruled  that  where  a  lode  has  gone  to  patent  the 
owner  may  afterwards  by  separate  application  obtain  a  patent 
on  a  mill  site  used  in  connection  with  the  lode,  and  that  such 
application  need  not  show  an  actual  mill  on  the  ground.  Such 
mill  site  is  allowed  to  go  to  patent  on  the  theory  that  every 
lode  is  entitled  to  a  mill  site,  and  it  is  a  matter  of  indifference 
to  the  department  whether  the  owner  applies  for  the  patent 
on  lode  and  mill  site  together  or  separately. — 22  L.  D.  496,  L. 
0.  Reg.  62.  A  separate  mill  site  for  each  lode  in  a  group  was 
disallowed  in  32  L.  D.  128.  Where  more  than  one  mill  site  is 
applied  for,  reason  for  the  necessity  must  be  shown. — 34  L.  D. 
325. 

The  $500  Improvements  on  the  Lode  Are  Sufficient  to  Enter 

both  lode  and  mill  site,  if  the  mill  site  is  used  or  occupied  by 
the  applicant  for  mining  or  milling  purposes. — 8  L.  D.  195. 

Proof  of  Improvements. 

The  early  practice  of  the  Land  Office  was  to  patent  a  mill 
site  when  applied  for  in  connection  with  a  lode,  without  proof 
of  either  use  or  improvements.  This  practice  was  taken 
advantage  of  to  patent  building  lots,  and  all  sorts  of  claims 
as  mill  sites,  but  the  department  now  requires  proof  not  only 
that  it  is  non-mineral  land,  but  that  it  is  used  for  milling  pur- 
poses or  in  connection  with  the  mine — instances  of  such  being 
above  given. 

This  proof  of  the  use  of  the  site  in  connection  with  the  mine 
is  by  affidavit  of  the  applicant  and  of  two  disinterested  wit- 
nesses. Intention  to  use  is  not  sufficient. — 14  L.  D.  544. 

Adverse  and  Protest. 

When  a  mill  site  application  conflicts  with  a  prior  claim  of 
another  to  the  ground  for  like  purposes  it  may  be  adversed; 


300  SEVERANCE. 

or  it  may  adverse  or  be  adversed  by  a  lode  or  placer. — 1  L.  D. 
566 ;  Rev.  Ed.  555.  Where  in  conflict  with  a  mineral  claim  it 
may  be  defeated  by  a  protest  and  proof  of  being  located  on 
mineral  land. — 4  L.  0.  3 ;  5  Id.  51.  It  should  protest  a  lode. — 
36  L.  D.  144.  But  see  further  on  this  point  under  ADVERSE 

CLAIM,  post  p.  608. 

•/.••.  •   w,     • 


SEVERANCE. 


Separation  of  Surface  and  Mineral  Estate. 

The  ownership  of  the  minerals  may  be  vested  in  one,  while 
the  ownership  of  the  surface  is  in  another.  This  severance  is 
often  created  by  deed,  in  which  case  it  amounts  practically  to 
a  partition  on  a  horizontal  plane,  the  two  estates  being  entirely 
separated,  except  that  from  the  nature  of  the  case,  the  surface 
owner  can  usually  claim  the  right  of  support,  while  the  mine 
owner  can  claim  such  incidental  use  of  the  surface  as  is  neces- 
sary to  enable  him  to  win  the  minerals. — Caldwell  v.  Fulton, 
3  M.  R.  238,  31  P.  475,  72  Am.  Dec.  760;  Homer  v.  Watson, 
14  M.  R.  1,  79  P.  242,  21  Am.  Rep.  55;  Marvin  v.  Brewster  Co., 
13  M.  R.  40,  55  N.  Y.  538,  14  Am.  Rep.  322 ;  Baker  v.  Pittsburg 
C.  Co.,  68  Atl.  1014,  219  Pa.  398. 

When  minerals  are  so  severed  they  form  a  separate  part  of 
the  freehold  and  the  estate  is  not  a  mere  easement. — Bonson  v. 
Jones,  89  Iowa  380,  56  N.  W.  515;  McConnell  v.  Pierce,  210 
111.  627,  71  N.  E.  622;  Plummer  v.  Hillside  Co.,  104  F.  208,  43 
C.  C.  A.  490. 

If  the  surface  owner  take  the  minerals  he  is  a  trespasser. — 
Ashman  v.  Wigton,  (Pa.)  12  Atl.  74,  17  M.  R.  117. 

Where  there  has  been  a  severance  of  the  surface  from  the 
minerals  there  is  no  privity  between  the  estates. — Hutchinson 
v.  Kline,  199  Pa.  564,  49  Atl.  312;  and  their  owners  are  not 
tenants  in  common.— Virginia  Co.  v.  Kelly,  24  S.  E.  1020,  18 
M.  R.  395,  93  Va.  332. 


SEVERANCE.  301 

"Where  the  mineral  and  surface  rights  have  been  severed, 
the  possession  of  the  surface  owner  is  not  adverse  to  the  mine 
owner-  even  where  such  surface  owner  holds  by  deed  which 
conveyed  the  property  generally  without  reference  to  the 
previous  severance. — Crowe  Co.  v.  Atkinson,  85  Kan.  357,  Ann. 
Cas.  1912D,  1196,  116  P.  499. 

Parol  evidence  is  not  admissible  that  a  deed  of  all  coal 
under  certain  lines  was  intended  to  be  limited  to  one  par- 
ticular vein.— King  v.  New  York  Co.,  54  Atl.  477,  22  M.  R. 
515,  204  Pa.  628. 

Extent  of  Surface  Rights. 

The  right  of  entry  on  surface  can  not  be  enlarged  so  as  to 
allow  the  erection  of  coke  ovens — and  its  use  for  powder  house, 
blacksmith  shop  and  supply  stores  depends  upon  the  circum- 
stances of  the  case  as  found  by  the  jury. — Williams  v.  Gibson, 
84  Ala.  228,  5  Am.  St.  Rep.  368,  16  M.  R.  243,  4  So:  350.  The 
mine  owner  may  erect  hoisting  plant. — Wardell  v.  Watson,  5 
S.  W.  605,  93  Mo.  107. 

The  owner  of  the  coal  bed  has  the  right  to  remove  as  much 
of  the  overlying  stratum  as  is  necessary  to  work  the  coal,  and 
the  right  to  use  the  space  to  carry  foreign  coal  by  instroke — 
but  the  ownership  ceases  upon  exhaustion  of  the  coal. — Moore 
v.  Indian  Camp  Co.,  80  N.  E.  6,  75  Ohio  St.  493. 

The  surface  owner  has  the  right  to  bore  an  artesian  well 
through  the  coal  bed. — Pennsylvania  Co.  v.  Lcliigh  Valley  Co., 
250  Pa.  300,  95  Atl.  471. 

Injunction  lies  to  prevent  the  surface  owner  obstructing  the 
mineral  owner.— Porter  v.  Mack  Co.,  64  S.  E.  853,  65  W.  Va. 
636. 

Mining  Under  Improvements. 

By  statute  in  Colorado  (R.  S.  Sec.  4213,  4217)  the  mine 
o\vner  is  bound  to  secure  the  owner  of  the  surface  improve- 
ments if  he  attempts  to  mine  under  any  such  improvements. 
Such  statutes  are  no  great  departure  from  the  common  law 
which  compels  each  estate  to  be  enjoyed  with  proper  regard 


302  SEVERANCE. 

to  the  rights  of  the  sub-owner  or  superficial  owner  as  the  case 
may  be,  and  would  enjoin  mining  under  valuable  improve- 
ments if  irreparable  injury  were  threatened  by  such  mining. 

Surface  Support. 

Where  the  estates  are  severed  the  surface  owner  has  the 
absolute  right  to  vertical  support. — Yonghiogheny  Co.  v.  Hop- 
kins, 198  Pa.  343,  21  M.  R.  188,  48  Atl.  19.  And  the  rulings 
have  upheld  this  right  to  extreme  lengths.  A  lease  to  mine 
"all  the  coal"  does  not  give  the  right  to  deprive  the  surface 
of  support.— Mickle  v.  Douglas,  75  Iowa  78,  17  M.  R.  137,  39 
N.  W.  198;  contra,  Miles  v.  New  York  Co.,  250  Pa.  147,  95 
Atl.  397.  But  the  surface  owner  is  not  entitled  to  lateral  sup- 
port.—Matulys  v.  Philadelphia  Co.,  201  Pa.  70,  21  M.  R.  745, 
50  Atl.  823.  And  surface  support  may  be  waived  by  express 
covenant.— Miles  v.  Pa.  C.  Co.,  63  Atl.  1032,  214  Pa.  544. 

But  the  above  paragraph  is  too  concise  to  give  all  the  law 
on  this  subject  The  point  as  to  whether  there  is  an  implied 
covenant  for  surface  support  in  a  grant  of  all  the  coal  or  other 
mineral  has  been  the  subject  of  vast  discussion  in  all  the 
English  courts,  including  the  House  of  Lords.  An  unusually 
learned  opinion  in  Kuhn  v.  Fairmont  C.  Co.,  179  F.  191,  199, 
102  C.  C.  A.  457,  reviews  the  cases  and  holds  with  the  West 
Virginia  Supreme  Court,  that  a  grant  of  all  the  coal  is  a 
waiver  of  the  right  of  support. — Griffin  v.  Fairmont  C.  Co.,  59 
W.  Va.  480,  2  L.  R.  A.  (N.  S.)  1115,  53  S.  E.  24;  Stilley  v. 
Pittsburg  Co.,  234  Pa.  492,  41  L.  R.  A.  (N.  S.)  236,  83  Atl. 
478. 

Instances  of  Severance. 

The  surface  and  the  subjacent  strata  are  rarely  owned  by 
separate  parties  on  the  Western  Slope  except  where  placer  gold 
or  lodes  have  been  discovered  in  towns  before  entry  under  the 
Town  Site  Acts ;  or  in  instances  where  conflicting  claims  have 
been  compromised  by  deed,  one  party  taking  the  surface  and 
improvements,  the  other  the  veins  underneath. 


SEVERANCE.  303 

But  the  subject  is  important  in  the  Western  States  chiefly 
with  reference  to  the  question  of  whether  claims  located  on 
government  land  and  claims  patented  by  the  government  take 
both  surface  and  minerals  in  all  cases,  or  whether  in  any  case 
there  is  an  actual  or  implied  severance  of  the  minerals  from 
the  surface,  either  from  the  nature  of  the  claim  or  from  the 
language  of  patents  confirming  the  claim. 

Patented  Claims  Generally. 

As  to  patented  claims  it  has  been  the  policy  of  the  govern- 
ment to  grant  the  entire  estate,  and  retain  no  interest  with 
the  patentee.  It  has  been  so  held  in  the  case  of  a  Mexican 
grant  confirmed  by  patent,  although  under  the  original  grant 
the  claimant  had  received  no  title  to  the  mines  of  gold  and 
silver  from  the  Mexican  government.  It  was  considered  that 
the  confirmatory  patent  of  the  United  States  conveyed  the 
soil,  and  everything  under  the  soil,  and  that  if  the  govern- 
ment had  intended  to  reserve  the  royal  metals,  as  the  Mexi- 
can Republic  had  done,  it  should  have  been  so  expressly  stated 
in  the  patent.— Moore  v.  Smaw,  12  M.  R.  418,  17  Cal.  199,  79 
Am.  Dec.  123. 

In  Patents  to  Lode   Claims,   Both  Surface   and  Minerals 

are  conveyed  in  terms. 

Placer  Claim  Patents  Convey  Not  Only  the  Placer  Deposits 

and  the  surface,  but  also  all  veins  except  those  known  to  exist 
when  the  application  for  patent  was  filed,  which  are  expressly 
excepted. 

As  to  Mill  Site  Patents  It  Is  Required  That  Such  Claims 

be  located  on  non-mineral  land. 

But  aside  from  the  clause  referring  to  the  rights  of  the  pro- 
prietors of  lodes  dipping  underneath,  which  is  common  to  all 
classes  of  patents,  they  seem  to  be  a  general  grant  of  the  land 


304  SEVERANCE. 

which  they  enclose,  which  grant  would  cover  all  lodes  and 
mineral  rights. 

A  valid  lode  claim  overlying  the  ground  could  have  pro- 
tected its  rights  by  an  adverse;  and  not  only  do  the  general 
rules  of  construction  favor  the  proposition  that  a  mill  site 
patent  conveys  all  lodes  and  deposits  found  within  its  lines, 
but  the  government  having  undertaken  to  decide  the  mineral 
or  non-mineral  character  of  the  ground  before  the  patent 
issues  and  thereupon  to  issue  an  absolute  grant,  such  grant 
carries  both  the  soil  and  what  is  under  the  soil. — Gale  v.  Best, 
78  Cal.  235,  12  Am.  St.  Rep.  44,  20  P.  550,  17  M.  R.  186. 

As  to  Patented  Agricultural  Claims  Obtained  in  Good  Faith, 

not  at  the  time  of  entry  known  to  be  mineral  land,  minerals 
afterwards  discovered  certainly  belong  to  the  patentee;  but 
where  land  has  been  entered  as  agricultural  upon  which  min- 
eral locations  existed,  in  defiance  of  the  rights  of  mineral 
claimants,  such  patents  could  be  set  aside  in  favor  of  the  min- 
eral claimants,  and  it  was  held  in  the  case  of  Gold  Hill  Co.  v. 
Ish,  5  Or.  104,  11  M.  R.  635,  that  such  a  patent  was  abso- 
lutely void  as  to  the  land  covered  by  the  mining  claim.  But 
the  case  discards  the  now  well  settled  rule  that  a  patent,  how- 
soever procured,  operates  to  pass  the  legal  title,  and  in  such 
cases  the  holder  should  be  declared  a  trustee  for  the  use  of  the 
owner  of  the  mine. — Salmon  v.  Symonds,  30  Cal.  301,  302. 
See  page  177. 

Old  worked-out  claims  do  not  invalidate  an  agricultural 
patent.— United  States  v.  Reed,  28  F.  482. 

Lodes  Dipping  Under  Patents. 

It  may  as  well  be  observed  under  this  head  that  all  patents, 
agricultural  as  well  as  mineral,  are  supposed  to  contain  a 
reservation  of  the  right  of  lodes  apexing  outside  their  bounds, 
to  dip  underneath  their  lines.  See  page  213. 

The  authority  to  insert  this  clause  in  agricultural  patents  is 
doubted  in  Paterson  v.  Ogden,  141  Cal.  43,  99  Am.  St.  Rep. 
31,  74  P.  443. 


SEVEEANCE.  305 

School  Lands. 

Section  16  of  each  township,  if  non-mineral,  since  the  organ- 
ization of  the  federal  government,  and  in  later  years,  sec- 
tion 36,  and  in  some  states  additional  sections,  have  been 
reserved  from  sale  and  granted  to  the  respective  states  upon 
their  admission,  such  sections  in  the  territories  being  held  by 
the  government  by  an  implied  trust  to  that  effect. — 8  L.  D.  495. 
The  words  of  grant  to  the  several  states  are  not  uniform  but 
in  general  the  title  passes  upon  approval  of  the  survey. — 7  L. 
D.  459,  9  Id.  408 ;  Cooper  v.  Roberts,  18  How.  (59  U.  S.)  173, 
15  L.  Ed.  338. 

Minerals  are  reserved  in  the  school  grants  to  certain  states 
and  not  in  others,  with  enumeration  of  each  list.  They  are  not 
reserved  in  Utah.— Sweet  v.  U.  S.,  228  P.  421. 

Until  survey  they  are  open  to  discovery  of  mineral  and  loca- 
tion of  mineral  claims  upon  them  the  same  as  upon  the  rest  of 
the  public  domain. 

When  the  mineral  character  of  such  reserved  sections  was 
known  before  survey  the  title  to  no  part  of  the  same  passes  to 
the  state,  and  claims  may  be  located  upon  them. — 5  L.  0.  178; 
Heydenfeldt  v.  Daney  Co.,  93  U.  S.  634,  23  L.  Ed.  995,  13  M. 
R.  204;  Ivanhoe  Co.  v.  Keystone  Co.,  13  M.  R.  214,  102  U.  S. 
167,  26  L.  Ed.  126;  Nevada  Co.  v.  Spriggs,  41  Utah  171,  124 
P.  770. 

But  where  their  mineral  character  has  been  discovered  since 
they  were  surveyed,  such  subsequent  discovery  of  mineral  will 
not  divest  the  title  which  has  already  passed. — 7  L.  D.  459,  9 
Id.  408.  And  the  states  have  control  of  their  sale  and  disposal. 
Before  admission  as  a  state  a  territory  has  no  such  control. — 
4  L.  D.  390. 

Where  lands  are  mineral  at  date  of  the  reservation  they  do 
not  pass  to  the  state  upon  the  subsequent  abandonment  of 
the  mines.— Hermocilla  v.  Hulbell,  26  P.  611,  89  Cal.  5. 

The  determination  of  non-mineral  character  by  the  Land 
Office  is  not  subject  to  collateral  attack. — Saunders  v.  La 
Purisima  Co.,  125  Cal.  159,  57  P.  656,  20  M.  R.  93. 


300  SEVERANCE. 

Lieu  Lands. 

Under  the  act  reimbursing  states  for  mineral  lands  lost  on 
account  of  their  mineral  character,  location  may  be  made 
before  final  approval  of  the  selection. — Buena  Vista  Co.  v. 
Honolulu  Co.,  166  Cal.  71,  134  P.  1154,  27  L.  D.  411,  29  L.  D. 
181. 

Patented  Town  Sites. 

In  this  case  there  is  an  express  severance  of  the  minerals. 
The  holder  of  the  lot  takes  no  title  to  any  located  claims.  The 
lot  is  subject  to  entry  to  get  the  mines  of  gold  or  silver  which 
it  may  contain.— R.  S.  Sees.  2386,  2392. 

These  sections  are  supplemented,  if  not  supplied,  by  an  act 
approved  March  3,  1891,  as  follows: 

Reservation  of  Mineral  Rights  From  Town  Sites. 

See.  16. — That  town-site  entries  may  be  made  by  incorporated  towns 
and  cities  on  the  mineral  lands  of  the  United  States,  but  no  title  shall 
be  acquired  by  such  towns  or  cities  to  any  vein  of  gold,  silver,  cinnabar, 
copper  or  lead,  or  to  any  yalid  mining  claim  or  possession  held  under 
existing  law. 

When  mineral  veins  are  possessed  within  the  limits  of  an  incorporated 
town  or  city,  and  such  possession  is  recognized  by  local  authority  or  by 
the  laws  of  the  United  States,  the  title  to  town  lots  shall  be  subject  to 
such  recognized  possession  and  the  necessary  use  thereof  and  when  entry 
has  been  made  or  patent  issued  for  such  town  sites  to  such  incorporated 
town  or  city,  the  possessor  of  such  mineral  vein  may  enter  and  receive 
patent  for  such  mineral  vein,  and  the  surface  ground  appertaining 
thereto : 

Provided,  That  no  entry  shall  be  made  by  such  mineral-vein  claimant 
for  surface  ground  where  the  owner  or  occupier  of  the  surface  ground 
shall  have  had  possession  of  the  same  before  the  inception  of  the  title 
of  the  mineral-vein  applicant. — 26  St.  L.  1101,  Comp.  L.  1901  p.  1535. 

A  town  site  entry  under  the  above  act  must  conform  to  legal 
subdivision  when  made  upon  surveyed  lands,  as  required  by 
R.  S.  Sec.  2389.— 33  L.  D.  542. 

The  town  patent,  where  valid  mining  locations  have  been 
made  within  its  limits,  does  not  grant  the  minerals. — Moyle  v. 


SEVEKANCE.  307 

Bullene,  7  Colo.  App.  308,  44  P.  69,  26  L.  D.  144,  29  L.  D.  89; 
nor  v.here  the  land  was  known  to  be  mineral  at  time  of  entry. 
—29  L.  D.  426,  31  Id.  88.  Under  the  terms  of  the  second 
paragraph  of  the  present  act  it  seems  clear  that  lode  or  placer 
patents  can  issue  for  such  claims  within  the  town  limits. — 25 
L.  D.  518,  34  Id.  102,  276.  If  the  mine  was  located  after  the 
occupation  of  the  surface  by  the  lot  owner,  but  before  the  entry 
of  the  town  site  for  patent,  the  mines  and  surface  are  then 
separate  estates,  each  to  be  enjoyed  under  the  various  appli- 
cations of  the  maxim :  sic  utere  tuo  ui  alienum  non  laedas. — 
Smoke  House  Lode  Case,  6  Mont.  397,  12  P.  858;  King  v. 
Thomas,  6  Mont.  409, 12  P.  865 ;  Deffeback  v.  Hawke,  115  U.  S. 
392,  29  L.  Ed.  423,  6  Sup.  Ct.  Rep.  95. 

Under  the  various  reservations  in  favor  of  mines  out  of 
town  site  patents,  under  the  acts  in  force  before  1891,  it  has 
been  decided  that  discovery  of  mineral  after  the  patent  issues 
is  of  no  avail. — Tombstone  Townsite  Cases,  2  Ariz.  272,  15  P. 
26 ;  Lamed  v.  Jenkins,  113  F.  634,  51  C.  C.  A.  344.  That  a 
location  not  valid  on  account  of  indefinite  description  is  not 
excluded.— Blackmore  v.  Reilly,  2  Ariz.  442,  17  P.  72.  Nor  a 
location  without  a  discovery. — Regan  v.  Whittaker,  14  S.  D. 
373,  85  N.  W.  863,  21  M.  R.  309.  That  only  the  lode,  and  not 
its  surface,  is  excepted,  at  least  under  patents  prior  to  1872. — 
Dower  v.  Richards,  73  Cal.  477,  15  P.  105.  That  the  mine 
must  have  been  a  known  valuable  and  subsisting  claim. — 
Smith  v.  Hill,  89  Cal.  122,  26  P.  644;  Davis  v.  Weibbold,  139 
U.  S.  507,  35  L.  Ed.  238,  11  Sup.  Ct.  Rep.  628.  In  the  last  case 
it  was  also  held  that  a  reservation  in  a  mining  patent  in  favor 
of  a  lot  claimant  was  a  nullity  because  unauthorized.  A  lode 
once  profitably  worked  and  then  abandoned  is  not  excepted, 
though  after  the  town  site  patent  issues  the  lode  is  found  to 
be  still  valuable— Dower  v.  Richards,  151  U.  S.  658,  38  L.  Ed. 
305,  14  Sup.  Ct.  Rep.  452,  17  M.  R.  7Q4. 

The  rights  of  the  mine  owner  may  be  lost  by  laches  or 
neglect  to  keep  up  the  annual  labor. — Horsky  v.  Moran,  21 
Mont.  345,  53  P.  1064 ;  Emerson  v.  Kennedy  M.  Co.,  169  Cal. 
718, 147  P.  939. 


308  SEVERANCE. 

A  town  site  patent  under  E.  S.  Sec.  2392  issued  in  1877  did 
not  convey  title  to  any  valid  claim.  The  distinction  that  it 
must  be  a  mine  of  value  does  not  apply  to  patents  under  that 
act.—Callakan  v.  James,  141  Cal.  291,  74  P.  853. 

Golden  v.  Murphy  is  a  case  which  reviews  the  law  of  mining 
rights  reserved  out  of  the  townsite  patent  under  Sec.  2392 
and  sustains  the  contention  in  favor  of  the  lode. — 31  Nev.  395, 
103  P.  394,  105  P.  99. 

Railroad  Grants. 

Minerals  of  known  value  are  excepted  in  patents  to  the  N. 
Pacific  R.  R.  and  in  this  case  the  defendant  was  enjoined  from 
ousting  one  who  had  placer  locations  on  building  sand. — 
Loney  v.  Scott,  57  Or.  378,  32  L.  R.  A.  (N.  S.)  466,  112  P.  172. 
The  patent  to  Central  Pac.  R.  R.  Co.  excluded  minerals,  at 
least  all  minerals  claimed  prior  to  its  issue. — Van  Ness  v. 
Eooney,  160  Cal.  131,  116  P.  392. 

The  burden  is  on  the  company  to  show  the  non-mineral  char- 
acter of  the  land.  And  the  mineral  title  is  established  by  a 
showing  of  ore  sufficient  to  warrant  further  exploration. — 43 
L.  D.  545. 

Doubtful  Policy  of  General  Reservations. 

Out  of  these  attempted  reservations  of  known  lodes,  mines, 
or  minerals,  by  general  terms  under  the  acts  providing  for  the 
patenting  of  different  classes  of  land,  only  trouble,  uncertainty 
and  litigation  ensue;  the  holdings,  therefore,  are  usually 
strictly  against  them.  And  yet  the  fault  is  with  the  govern- 
ment attempting  to  protect  such  rights  by  sweeping  clauses 
instead  of  allowing  them  to  adverse  or  to  come  in  as  co-appli- 
cants— the  mines  become  abandoned  and  the  lot  owner  claims 
the  whole  estate,  or  they  become  of  sudden  value,  tempting 
the  miner  to  assert  more  than  his  rights.  The  same  observa- 
tions apply  with  greater  force  to  the  reservation  of  known 
lodes  out  of  placers.  The  result  in  either  case  is  that  the  sur- 


SEVERANCE.  309 

face  is  disposed  of,  while  the  legal  title  to  the  minerals  remains 
in  the  United  States.  The  present  practice  is  to  allow  an 
overlapping  patent  to  the  mineral  claimant  under  certain  con- 
ditions.—25  L.  D.  518,  29  Id.  89,  426.  Before  the  decision  in 
the  South  Star  case,  cited  p.  284,  the  department  had  required 
the  surface  patent  to  be  set  aside  before  they  would  take 
action.— Pile's  Peak  Lode,  10  L.  D.  200;  Protector  Lode,  12 
L.  D.  662. 

Unpatented  Claims. 

A  lode  claim  covers  the  entire  surface  as  well  as  the  veins 
within  it.  Before  the  passage  of  the  Mining  Acts,  it  had  been 
held  (Brown  v.  49  Co.,  15  Cal.  152,  76  Am.  Dec.  468,  9  M.  R. 
600)  that  a  lode  location  also  included  float  gold  below  its 
apex,  which  had  evidently  come  from  that  particular  vein.  It 
is  evident,  from  the  Congressional  grant  of  the  surface  with- 
out excepting  any  form  of  deposit,  that  a  lode  location  made 
in  good  faith  upon  an  ore-producing  vein,  without  the  aid  of 
any  such  decision,  would  include  placer  deposits  within  its 
lines  both  above  and  below  the  vein. 

But  an  unpatented  placer  claim  covers  no  lodes,  and  a  lode 
claim  may  be  located  across  it.  If  the  holder  of  such  claim 
discover  mineral  upon  it  he  should  stake  and  record  the  same, 
as  a  lode  claim,  and  he  has  the  same  right  as  a  stranger  so  to 
do,  if  he  be  the  first  to  disclose  such  mineral  value. — McCarthy 
v.  Speed,  11  S.  D.  362,  50  L.  R.  A.  184,  77  N.  W.  590,  19  M.  R. 
615.  An  unpatented  town  site  or  ranch  claim  does  not  include 
either  veins  or  deposits  of  gold  or  silver. 

Where  land  has  been  returned  as  agricultural,  the  discovery 
and  formal  location  of  a  lode  or  placer  deposit  over  the  same 
shifts  the  presumption  to  one  in  favor  of  the  mineral  claim-, 
ant.— 21  L.  D.  502. 

Mining  Under  Street  or  Highway. 

The  minerals  under  a  street  do  not  belong  to  the  city  or 
town. — Leadville  v.  Bohn  M.  Co.,  37  Colo.  248,  11  Ann.  Gas. 


310  STATE  LANDS. 

443,  8  L.  R.  A.  (N.  S.)  422,  86  P.  1038;  Hartiby  v.  City  of 
Dawson  Springs,  126  Ky.  451,  12  L.  R.  A.  (N.  S.)  1164,  104 
S.  W.  259. 

Mineral  water  considered  a  mineral,  in  construing  the 
ownership  of  the  minerals  under  a  highway. — Hamby  v.  City 
of  Dawson  Springs,  126  Ky.  451, 12  L.  R.  A.  (N.  S.)  1164,  104 
S.  W.  259. 

A  highway  across  a  mining  claim  is  only  an  easement. — 
O'Laine  v.  McGraw,  164  Cal.  424,  129  P.  460. 

In  River  Bed. 

The  state  is  the  owner  of  minerals  found  in  the  bed  of  a 
navigable  stream. — Malcomson  v.  Wappoo  Mills,  86  F.  192.  A 
mining  claim  may  be  located  upon  the  bed  of  an  unnavigable 
stream. — 43  L.  D.  248. 


STATE  LANDS. 


In  Montana,  Nevada,  and  "Wyoming  the  state  lands  are  by 
statute  open  to  prospectors.  The  state  patent  does  not  pass 
mines  claimed  under  the  Nevada  Act. — Stanley  v.  Mineral 
Union,  63  P.  59,  26  Nev.  55. 

By  Colorado  Act  of  1905  (R.  S.  Sec.  5215)  prospectors  dis- 
covering mineral  on  state  lands  are  allowed  to  pre-empt  a 
claim  1500  by  300  feet  whether  lode  or  placer  and  ultimately 
to  obtain  the  state's  title  to  the  same  at  a  minimum  price  of 
$10  per  acre. 

LOCATION  NOTICE  ON  STATE  LAND. 

I  claim  the  Admiral  lode  (or  placer)  discovered  by  me  on  State  land, 
1,500  by  300  feet,  750  feet  easterly  and  750  feet  westerly  from  this 
point,  as  staked  on  the  ground  this  14th  day  of  July,  1915. 

A.  W.  BROWN. 

The  above  notice  holds  the  claim  for  90  days,  during  which 
time  the  discoverer  must  do  $100  assessment  work  and  stake 


TUNNEL  SITES.  311 

the  claim  and  file  a  location  certificate  with  the  State  Board 
of  Land  Commissioners  and  within  one  year  must  apply  to  the 
Board  for  either  lease  or  deed.  The  forms  on  pp.  90  and  271 
will  suffice  for  location  certificates  and  no  record  at  all  is 
required  in  the  County  Recorder's  office. 


TUNNEL  SITES. 


Line  of  Tunnel — Neglect  to  Work  for  Six  Months. 

E.  S.  See.  2323. — Where  a  tunnel  is  run  for  the  development  of  a  vein 
or  lode,  or  for  the  discovery  of  mines,  the  owners  of  such  tunnel  shall 
have  the  right  of  possession  of  all  veins  or  lodes  within  three  thousand 
feet  from  the  face  of  such  tunnel  on  the  line  thereof,  not  previously 
known  to  exist,  discovered  in  such  tunnel,  to  the  same  extent  as  if  dis- 
covered from  the  surface;  and  locations  on  the  line  of  such  tunnel  of 
veins  or  lodes  not  appearing  on  the  surface,  made  by  other  parties  after 
the  commencement  of  the  tunnel,  and  while  the  same  is  being  prosecuted 
with  reasonable  diligence,  shall  be  invalid;  but  failure  to  prosecute 
the  work  on  the  tunnel  for  six  months  shall  be  considered  as  an  aban- 
donment of  the  right  to  all  undiscovered  veins  on  the  line  of  such  tunnel. 
— Sec.  4,  A.  C.  May  10,  1872. 

Record. 

E.  S.  Colo.  Sec.  4207. — If  any  person  or  persons  shall  locate  a  tunnel 
claim  for  the  purpose  of  discovery,  he  shall  record  the  same  specifying  the 
place  of  commencement  and  termination  thereof,  with  the  names  of  the 
parties  interested  therein. — Nov.  7,  1861. 

Line  of  Tunnel. 

Immediately  upon  the  passage  of  the  Mining  Act  of  1872, 
containing  the  tunnel  section  above  printed,  controversy  arose 
as  to  what  was  meant  by  the  words  ' '  the  line  thereof. ' ' 

The  Land  Office  shortly  published  their  construction  that  it 
meant  "the  width  thereof  and  no  more."  This  construction 
was  adopted  in  the  case  of  Corning  Tunnel  Co.  v.  Pell,  14  M. 
R.  612,  4  Colo.  507.  This  became  the  generally  received  inter- 
pretation of  the  act  until  the  case  of  Enterprise  Co.  v.  Ricc» 


312  TUNNEL  SITES. 

Aspen  Co.,  66  F.  200,  13  C.  C.  A.  390,  affirmed  by  the  National 
Supreme  Court  in  1897,  167  U.  S.  108,  42  L.  Ed.  96,  17  Sup. 
Ct.  762,  18  M.  R.  661,  followed  by  the  case  of  Campbell  v. 
Ellet,  167  U.  S.  116,  42  L.  Ed.  101,  17  Sup.  Ct.  765,  18  M.  R. 
669,  affirming  Ellet  v.  Campbell,  18  Colo.  510,  511,  33  P.  521. 
The  Court  holds  that  a  tunnel  duly  located  and  its  work  dili- 
gently prosecuted  has  the  right  to  all  lodes  not  previously 
known  to  exist,  on  either  side  of  the  bore.  That  is  to  say, 
when  a  lode  is  reached  the  tunnel  may  elect  to  take  1500  feet 
in  one  direction  or -1500  feet  on  the  other  side  or  may  divide 
the  length,  so  much  on  either  side ;  that  all  locations  on  lodes 
not  previously  known,  made  within  such  area  are  voidable  at 
the  election  of  the  owner  of  the  tunnel. 

Location  and  Record  of  Tunnel  Site. 

The  following  form  has  been  drawn  in  attempted  compli- 
ance with  the  Act  of  Congress,  the  Land  Office  regulations  and 
the  construction  given  to  the  act  by  the  Rico-Aspen  case. 

It  purports  to  claim  its  entire  frontage  of  3000  feet  as  its 
line  of  tunnel,  and  if  the  Rico-Aspen  case  stands  in  its  entirety, 
the  claimant  is  in  position  to  assert  his  full  rights  under  such 
form.  But  the  Rico-Aspen  case  in  principle  can  not  be  recon- 
ciled with  Erhardt  v.  Boaro,  15  M.  R.  472,  113  U.  S.  527,  28 
L.  Ed.  1113,  5  Sup.  Ct.  560.  There  the  prospector  by  his 
notice  had  an  inchoate  right  to  his  lode,  just  discovered ;  such 
notice  not  specifying  the  extent  of  his  claim,  he  was  limited  in 
his  right  of  selection  to  750  feet  on  each  side  of  his  point  of 
discovery.  This  discord  as  to  the  two  classes  of  claims  still 
existing,  we  advise  that  it  is  safer  for  the  tunnel  claimant  to 
elect  at  the  outstart  to  take  750  feet  on  each  side,  or  some 
other  definite  number  of  feet  on  each  side,  of  the  bore  of  his 
proposed  tunnel. 

LOCATION   CERTIFICATE  OP  TUNNEL. 
TO  ALL  WHOM  THESE  PRESENTS  MAY  CONCERN :   KnOW  JG,  that  I,  W.  E. 

Eenshaw,  a  citizen  of  the  United  States,  of  Idaho  Springs,  County  of 
Clear  Creek,  State  of  Colorado,  do  hereby  declare  and  publish  as  a  legal 
notice  to  all  the  world  that  I  have  a  valid  right  to  the  occupancy,  poa- 


TUNNEL  SITES.  313 

session  and  enjoyment  of  THE  HALL  TUNNEL  AND  TUNNEL  SITE,  located 
January  22nd,  A.  D.  1916,  for  the  discovery  of  mines  and  the  devel- 
opment of  lodes,  and  situate  in  Griffith  Mining  District,  Clear  Creek 
County,  State  of  Colorado,  described  as  follows,  to-wit: 

Mouth  of  tunnel  situate  on  north  slope  of  Leavenworth  mountain; 
from  the  month  of  the  tunnel,  culvert  under  the  middle  track  of  the 
Georgetown,  Breckenridge  $•  Leadville  Eailroad  bears  N.  17  degrees  38 
minutes  W.  32  feet;  corner  No.  6  survey  lot  No.  4614-B.  Lion  mill  site 
bears  N.  73  degrees  45  minutes  W.  100.7  feet;  Woodchuck  rock  bears 
N.  50  degrees  45  minutes  E.;  Sherman  mountain  bears  N.  72  degrees 
55  minutes  W. 

Size  of  tunnel  8  feet  wide  by  7  feet  high  in  the  clear. 

Course  of  tunnel  from  its  mouth  S.  17  degrees  38  minutes  E.  3,000 
feet  to  the  south  end  of  said  tunnel,  at  which  point  is  set  a  substantial 
stake,  being  the  end  stake,  and  between  tunnel  mouth  and  end  stake  the 
center  line  of  the  tunnel  is  marked  at  500  feet,  1,200  feet,  1,900  feet 
and  2,528  feet  from  the  mouth  by  marked  stakes  or  biased  and  marked 
trees.  From  the  end  stake  Eepublican  mountain  bears  N.  40  degrees  W.; 
Saxon  mountain  bears  N.  39  degrees  40  minutes  E.;  a  stump  9  inches 
in  diameter  marked  "B.  T.  $  H.  T."  bears  S.  86  degrees  15  minutes 
W.  18.4  feet;  a  tree  5  inches  in  diameter  marked  "H.  T.  $•  B.  T."  bears 
N.  43  degrees  W.  2  feet;  from  said  end  stake,  set  a  stake  N.  72  degrees 
22  minutes  E.  1,500  feet;  from  said  end  stake  set  a  stake  S.  72  degrees 
22  minutes  W.  1,500  feet;  from  mouth  of  tunnel  set  a  stake  N.  72 
degrees  22  minutes  E.  1,500  feet;  from  mouth  of  tunnel  set  a  stake 
S.  72  degrees  22  minutes  W.  1,500  feet;  which  last  four  mentioned  stakes 
are  at  the  exterior  corners  of  the  claim  of  said  tunnel  site. 

And  I  claim  for  line  of  tunnel  1,500  feet  on  each  side  of  the  center  of 
the  bore  or  course  of  the  tunnel,  and  the  right  to  1,500  feet  on  each 
and  every  lode  which  may  be  -discovered  in  the  due  prosecution  of  said 
tunnel.  (") 

Together  with  all  and  singular  the  hereditaments  and  appurtenances 
thereunto  belonging  or  in  anywise  appertaining,  and  all  rights  granted 
to  the  locator  as  tunnel  rights  under  the  terms  of  section  2323  of  the 
Revised  Statutes  of  the  United  States. 

Witness  my  hand  and  seal  this  22nd  day  of  January,  A.  D.  1916. 

W.  E.  RENSHAW.    [SEAL.] 

STATE  OF  COLORADO,         \  gg^ 
City  and  County  of  Denver.  ) 

Before  me,  the  subscriber,  a  notary  public  in  and  for  said  county,  per- 
sonally appeared  W.  E.  Eenshaw,  to  me  personally  known  to  be  the  same 
person  who  executed  the  within  declaration  of  occupation  and  acknowl- 


314  TUNNEL  SITES. 

edged  that  he  signed,  sealed  and  published  the  same  as  his  free  and  vol- 
untary act  and  deed  for  the  uses  and  purposes  therein  set  forth. 

Witness  my  hand  and  notarial  seal  this  22nd  day  of  January,  A.  D. 
1916.  Alice  Hatch, 

[SEAL.]  Notary  Public. 

STATE  OP  COLORADO,         )  flg 
City  and  County  of  Denver.  ) 

W.  E.  Senshaw,  of  the  County  of  Clear.  Creek,  State  of  Colorado, 
being  first  duly  sworn  according  to  law  deposes  and  says:  That  he  is  a 
citizen  of  the  United  States  over  the  age  of  21  years;  that  he  is  the 
owner  by  pre-emption,  location  and  occupation  of  the  foregoing  tunnel 
site,  the  said  tunnel  being  prosecuted  for  the  development  of  lodes 
belonging  to  said  affiant;  also  for  the  discovery  of  other  lodes;  affiant 
further  says  that  he  has  expended  in  actual  work  and  improvements 
on  said  tunnel  not  less  than  forty  thousand  dollars,  and  that  said  tunnel 
has  been  already  run  the  distance  of  1,000  feet,  and  that  it  is  bona  fide 
his  intention  to  prosecute  work  on  said  tunnel  so  located  and  described 
with  reasonable  diligence  for  the  purposes  therein  set  forth. 

W.  E.  EENSHAW. 

Subscribed  and  sworn  to  before  me  this  22nd  day  of  January,  A.  D. 
1916.  Duncan  W.  Miller, 

[SEAL]  Notary  Public. 

Before  recording  place  at  the  mouth  of  tunnel  the 

LOCATION  NOTICE. 

The  Hall  Tunnel  and  Tunnel  Site,  located  this  January  22nd,  1916, 
by  W.  E.  Eenshaw.  Course  S.  17  degrees  38  minutes  E.  3,000  feet  to 
end  post,  from  which  end  post  Eepubliean  mountain  bears  N.  40  degrees 
W.,  Saxon  mountain  bears  N.  39  degrees  40  minutes  E.,  stump  9  inches 
diameter  marked  "B.  T.  &  H.  T."  bears 'S.  86  degrees  15  minutes  W. 
18.4  feet. 

Height  of  tunnel  7  feet,  width  8  feet. 

I  claim  1,500  feet  on  all  lodes  to  be  discovered  in  this  tunnel  and  not 
previously  known  to  exist,  on  either  side  of  tunnel  as  staked  on  the 
groundv(t)  •  W.  E.  EENSHAW. 

DUMP  LOCATION. 

If  ground  for  a  dump  is  claimed,  add,  in  the  location  cer- 
tificate after  the  (*)  : 

I  also  claim  a  square  tract  of  hind  125  feet  on  each  side  of  the  mouth 
of  tunnel  and  extending  250  feet  immediately  below  the  mouth  of  the 
tunnel,  as  staked  upon  the  ground,  for  dumping  purposes. 


TUNNEL  SITES.  315 

And  to  the  notice  after  the  ( t )  add : 

Dump  250  feet  square  as  staked. 

The  actual  location,  of  course,  consists  in  setting  the  stakes 
as  called  for  in  such  notices,  and  in  starting  the  tunnel  in  good 
faith. 

Location  of  Lodes  Cut  in  a  Tunnel. 

They  should  be  staked  and  recorded  exactly  as  in  the  case 
of  lodes  discovered  at  the  surface,  except  that  no  discovery 
shaft  is  required — the  discovery  in  the  tunnel  taking  its  place 
— and  the  location  stake  or  notice  should  be  set  on  the  surface 
at  a  point  midway  between  side  lines  and  above  the  discovery 
in  the  tunnel.  Such  location  notice,  as  well  as  the  location 
certificate,  should  state  the  fact  that  the  lode  was  discovered 
in  the  tunnel  and  the  number  of  feet  in  from  the  mouth.  In 
fixing  the  surface  line,  approximate  calculations  should  be 
made  for  the  dip.  In  Ellet  v.  Campbell,  18  Colo.  510,  33  P. 
521,  affirmed  Campbell  v.  Ellet,  167  U.  S.  116,  42  L.  Ed.  101, 
17  Sup.  Ct.  765,  18  M.  R.  669,  it  was  held  that  the  discovery 
need  not  be  followed  by  location ;  but  the  Court  conceded  that 
it  might  be  required  before  patent  could  be  secured. 

"A  tunnel  is  not  a  mining  claim  although  it  has  some- 
times been  inaccurately  called  one. ' ' — Creede  Co.  v.  Uinta  Co., 
196  U.  S.  337,  49  L.  Ed.  501,  25  Sup.  Ct.  266.  In  that  case  it 
is  expressly  held  that  the  tunnel  is  a  means  of  exploration  "in 
the  hope  of  finding  a  mineral  vein.  When  one  is  found  he 
(the  tunnel  owner)  is  called  upon  to  make  a  location  of  the 
ground  containing  that  vein  and  thus  creates  a  mining  claim 
the  protection  of  which  may  require  adverse  proceedings." 

We  never  could  conceive  that,  as  might  be  inferred  from  the 
Ellet  case,  a  discovery  in  a  tunnel  would  hold  indefinitely 
without  defining  the  surface  lines  of  the  claim,  and  the  ruling 
above  cited  from  the  Creede  case  by  the  National  Supreme 
Court  sets  the  matter  at  rest. 

Under  this  decision  as  \ve  understand  it  the  discoverer  by 
tunnel  has  no  greater  rights  than  one  who  finds  the  lode  on 


816  TUNNEL  SITES. 

the  surface  and  after  discovery  so  made  has  no  greater  time 
than  any  other  discoverer  to  fix  the  length,  width  and  surface 
lines  which  he  will  choose  to  enclose  and  protect  his  discov- 
ery. 

In  Brewster  v.  Shoemaker,  28  Colo.  176,  89  Am.  St.  Kep. 
188,  53  L.  R.  A.  793,  63  P.  309,  21  M.  R.  155,  the  lode  was  cut 
250  feet  below  the  surface  in  an  unrecorded  cross-cut.  The 
dip  was  calculated  to  the  surface  and  discovery  notice  posted 
on  the  center  line,  referring  to  the  discovery  in  the  tunnel, 
and  the  claim  was  staked  and  recorded.  Held,  that  the  loca- 
tion was  valid  and  that  no  proving  up  between  surface  and  the 
tunnel  was  required.  The  case  holds  also  that  the  fact  that  the 
tunnel  had  been  driven  across  patented  ground  belonging  to 
strangers  was  not  a  point  which  could  be  raised  by  third  par- 
ties. 

The  Right  to  Penetrate  Under  Other  Lands. 

The  trespass  of  a  tunnel  cutting  through  country  rock 
across  a  claim  at  great  depth  is  not  of  that  class  denominated 
as  destructive  or  irreparable,  but  it  opens  a  private  back  door 
to  the  miner's  underground  wealth,  and  it  may  be  enjoined 
because  its  completion  would  ultimately  ripen  into  an  ease- 
ment.—Richards  v.  Dower,  64  Cal.  62,  28  P.  113 ;  or  if  it  claims 
the  right  to  take  the  OTe—Stratton  v.  Gold  Sov.  Co.,  1  Mills' 
Leg.  Adv.  350. 

Applying  the  theory  that  every  surface  claimant  owns  to 
the  center  of  the  earth,  no  man  has  a  right  to  drive  a  tunnel 
underneath  the  property  of  another  without  his  license  or 
consent.  Such  right  may  exist  by  district  rule  (Bliss  v.  King- 
dom, 46  Cal.  651,  15  M.  R.  239),  but  without  any  specific  rule 
tunnels  were  constantly  driven  across  prior  claims  without 
much  question  until  the  Rico-Aspen  decision  and  its  sweeping 
concessions  to  tunnel  sites  compelled  miners  in  self-defense  to 
check  their  encroachments.  The  decisions  are  uniform  that 
in  the  absence  of  statute  or  district  rule,  a  tunnel  has  no 
implied  right  or  license  to  penetrate  under  prior  patents  or 
locations. — Richards  v.  Dower,  64  Cal.  62,  28  P.  113 ;  Dower  v. 


TUNNEL  SITES.  317 

Richards,  73  Cal.  477,  15  P.  lOfr;  Amador  Co.  v.  Dewitt,  73 
Cal.  482,  15  P.  74;  Calhoun  Co.  v.  Ajax  Co.,  182  U.  S.  499,  45 
L.  Ed.  1200,  21  Sup.  Ct.  885. 

A  party  has  no  right  to  tunnel  through  another's  patented 
ground  to  cut  a  vein  whose  apex  is  within  his  own  patented 
lines.— St.  Louis  M.  &  M.  Co.  v.  Montana  Co.,  113  F.  900,  51 
C.  C.  A.  530,  64  L.  E.  A.  207,  22  M.  E.  127. 

The  Colorado  Tunnel  Acts — Eminent  Domain. 

A  Colorado  Act  of  1861  gave  a  discovery  tunnel  the  "right 
of  way  through  all  lodes  which  may  lie  on  its  course."  The 
Act  of  1897  enlarged  this  permission,  and  further  provided 
for  right  of  inspection  to  the  owner  whose  lode  was  cut,  and 
placed  the  burden  of  proof  on  the  question  of  lode  identity  on 
the  tunnel.  Both  these  acts,  in  Cone  v.  Eoxanna  Co.  (HAL- 
LETT,  J.  MS.),  were  held  void  (1)  as  to  tunnel  crossing  prior 
location,  because  no  provision  was  made  for  compensation,  and 
(2)  because  not  within  the  terms  of  A.  C.  Sec.  2338,  allowing 
the  states  to  legislate  concerning  easements.  This  same  point 
(2)  was  ruled  in  Calhoun  Co.  v.  Ajax  Co.,  27  Colo.  1,  83  Am. 
St.  Eep.  17,  50  L.  E.  A.  209,  59  P.  607,  20  M.  E.  192  (affirmed 
182  U.  S.  499,  509,  45  L.  Ed.  1200,  21  Sup.  Ct.  885),  the  case 
making  no  reference  to  the  1897  Act,  but  its  tenor  would  be 
against  the  validity  of  the  act  as  a  license  to  penetrate  either 
a  prior  or  a  later  claim. 

The  Colorado  Act  of  1891  (E.  S.  Sec.  2461)  giving  tunnels 
the  right  to  condemn  a  right  of  way  was  sustained  in  Tanner 
v.  Treasury  Co.,  35  Colo.  593,  4  L.  E.  A.  (N.  S.)  106,  83  P. 
464,  so  there  can  be  no  doubt  of  the  validity  of  the  later  and 
more  specific  Act  of  1907  (E.  S.  Sec.  2435).  The  Idaho  Act 
on  the  same  subject  was  held  valid  in  Baillie  v.  Larson,  138 
F.  177. 

By  the  Colorado  Act  of  1907  power  is  given  to  condemn  a 
right  of  way  to  any  tunnel  company  offering  itself  as  a  com- 
mon carrier  of  ores.  It  must  file  with  the  County  Eecorder  a 
map  of  its  survey,  allow  inspection  to  owners  of  all  veins 


318  TUNNEL  SITES. 

which  it  cuts,  and  transport  their  ore  and  waste  at  fixed 
charges. 

Where  the  tunnel  has  already  been  driven  through  the 
claim,  it  seems  that  ejectment  is  the  proper  remedy,  arid  not 
injunction. — Creede  Co.  v.  Vinta  Co.,  HALLETT,  J.  MS. 

Unrecorded  Tunnels. 

Any  party  running  a  tunnel  would  probably  hold  the  tunnel 
itself  (i.  e.,  the  bore  as  far  as  actually  run),  without  any  record 
whatever. — 8  L.  0.  71.  This  is  done  every  day  in  the  case  of 
cross-cuts,  which  are  simply  tunnels  on  a  small  scale.  But  to 
claim  any  rights  for  its  line  or  otherwise  under  the  Act  of 
Congress  it  must  be  staked  and  recorded. 

Of  course,  a  lode  discovered  in  a  tunnel,  after  the  lode  has 
been  duly  located  and  recorded  on  the  tunnel  discovery,  is  as 
valid  upon  an  unrecorded  as  upon  a  recorded  tunnel,  its  title 
having  by  such  independent  location  become  a  matter  wholly 
apart  from  the  tunnel  location. 

Failure  to  Work, 

The  right  to  blind  lodes  is  conditioned  upon  prosecuting 
work  with  "reasonable  diligence."  In  the  Enterprise  Co.  v. 
Eico-Aspen  Co.,  66  F.  200,  206,  13  C.  C.  A.  390,  the  Court 
intimates  that  this  clause  should  receive  a  strict  construction 
and  that  prompt  and  energetic  prosecution  of  the  work  should 
be  required. 

Failure  to  work  for  six  months  deprives  the  tunnel  site  of 
its  claim  to  blind  lodes,  but  does  not  affect  its  right  to  con- 
tinue its  bore  through  claims  in  advance  of  it. — Fissure  Co.  v. 
Old  Susan  Co.,  22  Utah  438,  63  P.  587,  21  M.  R.  125. 

Abandonment. 

A  tunnel,  like  any  other  kind  of  possessory  claim,  may  be 
abandoned;  but  neglect  to  work  does  not  operate  to  effect  an 
abandonment;  such  neglect  only  operates  to  deprive  it  of 
tunnel  rights  along  its  line.  The  fact  that  no  labor  has  been 


TUNNEL  SITES.  319 

done  for  many  years  is  evidence  of  abandonment,  but  not 
conclusive.  As  before  stated  (page  108)  abandonment  is  a 
question  of  fact,  and  in  the  case  of  tunnels  is  wholly  inde- 
pendent of  the  annual  labor  law. 

Patent — Adverse  Claim. 

There  is  no  provision  for  patenting  a  tunnel  site.  42  L.  D. 
456.  Nor  does  it  need  to  protect  itself  by  adverse  against  an 
application  for  patent  on  a  survey  across  its  line  in  advance 
of  its  breast.  If  such  survey  cover  blind  lodes  not  yet  cut  in 
the  tunnel  the  tunnel  rights  to  the  same  are  saved  under  the 
ruling  in  the  Rico-Aspen  case.  And  as  to  its  right  to  bore 
through  such  patented  survey  its  easement  is  saved  without 
necessity  of  adverse  or  suit  under  the  authoritative  decision 
in  Creede  Co.  v.  Uinta  Co.,  supra. 

A  lode  recorded  on  a  tunnel  discovery  adverses  of  course  on 
its  own  merits  as  a  lode  location,  but  its  discovery  would  on 
proper  facts  relate  back  to  the  date  of  the  location  of  the 
tunnel  site. 

But  in  29  L.  D.  235,  a  tunnel  having  adversed  a  lode  appli- 
cation, the  application  was  held  stayed  until  the  determination 
of  the  supporting  suit;  and  the  case  suggests  the  necessity  of 
an  adverse  claim  to  protect  its  dump  ground,  if  surveyed  in. 

Annual  Labor  by  Tunnel. 

Sec.  1. — That  section  two  thousand  three  hundred  and  twenty-four  of 
the  Kevised  Statutes,  be,  and  the  same  is  hereby,  amended  so  that  where 
a  person  or  company  has  or  may  run  a  tunnel  for  the  purposes  of  devel- 
oping a  lode  or  lodes,  owned  by  said  person  or  company,  the  money  so 
expended  in  said  tunnel  shall  be  taken  and  considered  as  expended  on 
said  lode  or  lodes,  whether  located  prior  to  or  since  the  passage  of  said 
act;  and  such  person  or  company  shall  not  be  required  to  perform  work 
on  the  surface  of  said  lode  or  lodes  in  order  to  hold  the  same  as  required 
by  said  act.— Feb.  11,  1875,  18  St.  L.  315. 

The  annual  labor  of  $100  on  each  claim  may  be  performed 
under  the  above  section  by  work  done  on  a  tunnel,  cutting,  or 
which  is  driven  to  cut,  such  claims. — 5  L.  0.  5;  Id.  34;  17 
L.  D.  190. 


320  TUNNEL  SITES. 

To  apply  tunnel  work  it  is  no  objection  that  the  tunnel  runs 
through  vacant  ground  or  crosses  lodes  belonging  to  others 
before  it  reaches  a  point  where  it  would  tend  to  develop  the 
claim.— Hain  v.  Mattes,  34  Colo.  345,  83  P.  127.  . 

Where  not  enough  work  has  been  done  in  a  tunnel  to  protect 
all  the  claims  in  front  of  it,  the  company  must  in- some  manner 
show  to  which  claims  it  intended  the  work  to  apply. — Duncan 
v.  Eagle  Rock  Co.,  48  Colo.  569,  139  Am.  St.  Rep.  288,  111 
P.  588. 

The  Patent  Expenditures  of  $500  May  Also  Be  Made  on  Such 

tunnel.  4  L.  0.  67.  A  party  may  patent  one  lode  on  the  line 
of  his  tunnel  for  each  $500  of  labor  spent  in  driving  the  tunnel. 
30  L.  D.  510.  All  claims  in  a  group  must  share  equally  in  the 
expenditure  on  the  tunnel.  35  L.  D.  361 ;  36  L.  D.  100.  See 
p.  594. 

Tunnels  Over  3,000  Feet  Long. 

The  A.  C.  expressly  limits  the  claim  of  a  tunnel  site  to  lodes 
not  known  to  exist  "within  three  thousand  feet  from  the  face 
of  such  tunnel."  Attempts  have  been  made  to  evade  this 
limitation  by  filing  records  of  a  second  tunnel  to  begin  at  a 
point  3,000  feet  in  from  the  mouth  of  the  tunnel  projected 
from  the  surface;  i.  e.,  to  begin  at  the  end  of  the  first  3,000 
feet,  taking  3,000  feet  more,  and  even  third  and  fourth  exten- 
sions have  been  so  recorded. 

We  regard  these  locations  as  absolutely  void.  But  we  draw 
the  distinction  between  the  right  of  a  tunnel  to  undiscovered 
lodes  and  its  right  to  bore  through  the  mountain.  The  former 
is  granted  by  Act  of  Congress,  is  limited  by  its  terms  and 
can  not  be  enlarged.  The  latter,  the  right  to  bore,  is  a  mere 
easement,  exercised  under  district  rules  before  the  act,  and 
there  is  no  limitation  on  the  claim  of  a  tunnel  to  drive  itself 
through  the  public  domain  as  far  as  its  owners  may  desire  to 
penetrate. 

A  tunnel  in  its  record  therefore,  in  our  opinion,  can  claim  a 
right  of  way  to  drive  to  any  expressed  number  of  feet,  but  it 


TAXATION.  321 

can  not  claim  the  statutory  tunnel  right  to  blind  lodes  beyond 
the  first  3,000  feet ;  and  the  location  of  a  second  tunnel  from 
the  breast  of  the  first  is  an  attempt  by  a  self-serving  act  to 
take  from  the  prospector's  right  in  the  ground  beyond  3,000 
feet,  a  valuable  privilege,  which  the  Act  of  Congress  has  given 
him. 

Undecided  Tunnel  Questions. 

There  are  two  questions  likely  to  occur  in  tunnel  site  cases, 
but  we  are  not  aware  of  any  decision  on  either  of  them. 

1.  Is  a  tunnel  site  void  where  its  mouth  is  on  a  prior  sub- 
sisting claim,  especially  a  patented  claim,  whether  town  site, 
mill  site,  lode  or  placer? 

We  believe  that  it  would  be  so  held  by  analogy  to  the  doc- 
trine of  Gwillim  v.  Donnellan,  cited  on  p.  41,  where  the  loss 
of  the  discovery  shaft  was  held  to  be  the  loss  of  the  lode.  A 
notice  on  private  property  where  the  prospector  has  no  right 
to  trespass  is  no  notice  at  all. 

2.  Is  an  adit  on  a  vein  made  a  valid  tunnel  site  by  calling 
it  such  ?    In  other  words,  can  a  man  drive  a  drift  on  his  vein 
and  call  it  a  tunnel?  The  word  "tunnel"  of  itself  implies  that 
it  is  a  cut  across  the  country.    Certainly  a  man  could  not  cover 
such  adit  or  drift  by  a  lode  location  and  claim  it  as  a  tunnel 
site  also,  and  it  seems  apparent  that  he  could  not  record  it  as  a 
tunnel  site  at  all. 


TAXATION. 



By  the  Colorado  Revenue  Act,  R.  S.  Sec.  5575,  mining  claims 
are  required  to  be  listed  by  the  name  and  number  of  survey 
lot,  when  patented  or  entered  for  patent. 

Mines  are  divided  into  two  classes — producing  and  non- 
producing.  A  gross  output  of  $5,000  places  the  mine  in  the 
first  class. 


322  TAXATION. 

The  owner  of  a  producing  mine  must  make  a  special  return 
to  the  Assessor  in  detail  as  required  by  R.  S.  Sees.  5618,  5619 
(amended  by  Act  of  1915,  page  399).  These  sections  are  con- 
strued in  Foster  v.  Hart  M.  Co.,  52  Colo.  459,  122  P.  48; 
Paxson  v.  Cresson  Co.,  56  Colo.  206,  139  P.  531,  and  Tallon  v. 
Vindicator  Co.,  59  Colo.  316, 149  P.  108. 

Possessory  Title  Taxable. 

The  estate  in  unpatented  mining  claims  is  property  subject 
to  the  right  of  taxation.— Forbes  v.  Gracey,  94  U.  S.  762,  24 
L.  Ed.  313,  14  M.  R.  183;  Seymour  v.  Fisher,  16  Colo.  188, 
27  P.  240 ;  Earhart  v.  Powers,  17  Ariz.  55, 148  P.  286.  And  a  tax 
deed  conveys  the  locator's  title.— Elder  v.  Wood,  208  U.  S.  226, 
52  L.  Ed.  464,  28  Sup.  Ct.  263.  Notwithstanding  the  above 
declaration  of  taxable  status  the  possessory  title  has  not,  as  a 
rule,  been  assessed,  though  taxes  have  always  been  levied  on 
the  surface  improvements  when  extensive. 

Patented  Claims,  or  Those  Entered  for  Patent,  Are,  of  Course, 

assessed  and  taxed  as  other  classes  of  real  estate.  In  Nevada, 
and  other  States,  attempts  attended  with  continued  litigation 
have  been  made  to  tax  the  net  output.  Such  tax,  so  plausible 
in  theory,  is  unjust  and  grossly  unequal  after  conceding  the 
fact  that  absolutely  equal  taxation  can  not  be  realized  upon 
any  theory  of  assessment.  See  Mercur  Co.  v.  Spry,  16  Utah 
222,  52  P.  382,  construing  the  Utah  law  of  this  character.  Net 
proceeds  of  coal  mines  held  taxable  in  Montana. — Montana  Co. 
v.  Livingston,  21  Mont.  59,  52  P.  780. 

0 

Special  Instances. 

A  mine  can  not  be  sold  for  tax  assessed  against  improve- 
ments not  found  on  the  mining  ground. — Knox  v.  Higby, 
76  Cal.  264,  18  P.  381. 

Where  surface  and  minerals  are  separately  owned  they 
may  be  separately  taxed. — Cons.  Coal  Co.  v.  Baker,  135  111. 
545, 12  L.  R.  A.  247,  26  N.  E.  651 ;  Stuart  v.  Com.,  94  Ky.  595, 


LIENS,  JUDGMENTS,  MORTGAGES.  323 

2?  S.  W.  367;  Mound  City  Co.  v.  Goodspeed  Co.,  83  Kan.  136, 
109  P.  1002;  Doumman  v.  Texas,  231  U.  S.  353,  58  L.  Ed.  264, 
34  Sup.  Ct.  62 ;  Forty-Fort  C.  Co.  v.  Kirkendall,  233  F.  704. 

The  number  of  the  survey  lot,  in  Colorado,  is  an  essential 
part  of  the  description  in  a  tax  deed. — Hammon  v.  Nix,  104 
F.  689,  44  C.  C.  A.  132 ;  contra,  Seymour  v.  Deisher,  33  Colo. 
349,  80  P.  1038. 

American  Bauxite  Co.  v.  Board  of  Equalization  is  a  case 
which  well  illustrates  the  maxim  that  the  power  to  tax  is  the 
power  to  confiscate.  The  local  Assessor  valued  the  land  which 
had  been  bought  for  $500,000  at  $47,000,000.  The  Court  holds 
that  the  value  of  ores  and  cost  of  mining  are  items  to  be 
considered,  but  only  to  reach  the  determination  of  what  is  the 
market  value  of  the  mine.  The  assessment  was  cut  down  to  a 
sum  slightly  in  excess  of  the  purchase  price. — 119  Ark.  362, 
177  S.  W.  1151. 

Federal  Taxes. 

Net  income  of  mining  company,  how  determined.  Stratton's 
Ind.  v.  Howbert,  207  F.  419,  231  U.  S\  399,  58  L.  Ed.  285,  34 
Sup.  Ct.  136 ;  Stanton  v.  Baltic  M.  Co.,  240  U.  S.  103,  60  L.  Ed. 
— ,  36  Sup.  Ct.  278. 

Royalties,  when  not  taxable. — Sargent  Land  Co.  v.  Von 
Baumbach,  207  F.  423,  424.  Royalties  are  not  income.— Von 
Baumbach  v.  Sargent  Land  Co.,  219  F.  31,  134  C.  C.  A.  649. 
Long  lease  of  mines  is  practically  a  sale  of  the  ore. — Id. 


LIENS,  JUDGMENTS,  MORTGAGES. 


Liens— How  Affected  by  Patent. 

E.  S.  Sec.  2332.—  •  *  *  Nothing  in  this  chapter  shall  be  deemed 
to  impair  any  lien  which  may  have  attached  in  any  way  whatever  to 
any  mining-claim  or  property  thereto  attached  prior  to  the  issuance  of  a 
patent.— Sec.  13,  A.  C.  July  9,  1870. 


324  LIENS,  JUDGMENTS,  MORTGAGES. 

Patent,  although  relieving  claims  from  adverse  rights,  does 
not  relieve  from  liens  already  attached  against  the  property. 
On  the  other  hand,  the  patented  title  enures  to  the  benefit  of 
the  lien  holder.— Butte  Co.  v.  Frank,  65  P.  1,  25  Mont.  344, 
21  M.  R.  368. 

Judgments  are  liens  for  the  period  limited  by  statute  in  each 
State,  usually  six  years,  the  time  running  either  from  the  date 
of  judgment  or  the  date  of  filing  the  transcript  in  the 
Recorder's  office. 

The  miners'  possessory  title  is  subject  to  sale  under  the  lien 
of  a  judgment.— Bradford  v.  Morrison,  212  U.  S.  389,  53 
L.  Ed.  564,  29  Sup.  Ct.  349. 

Mortgages  and  Trust  Deeds. 

A  mortgage  may  be  so  drawn  as  to  secure  expenses  of 
mining  as  well  as  the  original  debt. — Charter  Oak  Co.  v. 
Stephens,  5  Utah  319,  15  P.  253.  In  exceptional  instances  a 
miner's  lien  has  been  held  to  cut  out  a  prior  mortgage. — 
Atlantic  Co.  v.  Ropes  C,o.,  119  Mich.  260,  77  N.  W.  938 ;  Gallo- 
way v.  Blue  Springs  Co.,  (Tenn.)  37  S.  W.  1016,  but  as  a 
general  rule  the  mortgage  takes  precedence  of  all  debts 
incurred  by  the  further  working  of  the  mine.  The  lien  of 
neither  mortgage,  judgment  nor  attachment,  prevents  the 
operation  of  the  mine  without  an  injunction  for  the  protection 
of  the  security — and  such  injunction  will  be  granted  only  in 
exceptional  instances. — Vervalen  v.  Older,  8  N.  J.  Eq.  98, 
10  M.  R.  540;  Chung  Kee  v.  Davidson,  102  Gal.  188,  36  P.  519. 
Such  liens  do  not  prevent  the  free  severance  and  sale  of  the 
ore.— Young  v.  Northern  Illinois  Co.,  13  F.  806,  10  M.  R. 
596,  9  Biss.  300.  The  debtor  can  continue  to  mine  after  sher- 
iff's sale,  during  the  redemption  period. — Ward  v.  Carp  River 
Co.,  15  N.  W.  889,  50  Mich.  522. 

In  Macon  v.  Trowlridge,  38  Colo.  330,  87  P.  1147,  an  action 
to  foreclose  a  trust  deed  on  a  mine,  defendant  was  allowed  to 
offset  damages  for  failure  of  the  note  holder  to  keep  the  cove- 
nants of  a  lease  on  the  same  mine. 


LIENS,  JUDGMENTS,  MORTGAGES.  325 

When  the  mine  was  worked  by  a  party  who  held  a  mortgage 
on  it  the  mine's  debts  he  incurs  are  not  the  debts  of  the  mort- 
gagor; and  any  net  proceeds  must  be  applied  on  the  debt. — 
Wadlcigh  v.  Phelps,  149  Cal.  627,  87  P.  93. 

The  Court  has  no  right  to  allow  receivers'  certificates  to  issue 
to  carry  on  mining  and  cut  out  a  mortgage  \\en..— International 
Tr.  Co.  v.  Decker  Bros.,  152  F.  78,  81  C.  C.  A.  302,  11  L.  R.  A. 
(N.  S.)  152;  Nowell  v.  International  Tr.  Co.,  169  F.  497,  94 
C.  C.  A.  589. 

By  Section  1  of  the  chapter  of  the  R.  S.  entitled  "Trust 
Deeds  and  Mortgages,"  trust  deeds  in  Colorado  must  run  to 
the  "Public  Trustee,"  otherwise  they  can  be  foreclosed  only 
as  mortgages.  Whatever  form  is  followed  the  statute  allows 
nine  months  for  redemption.  The  common  law  mortgage,  both 
for  security  to  the  creditor  and  for  fairness  to  the  debtor,  is 
to  be  preferred  in  all  cases  except  in  securing  large  bond  issues 
where  for  reasons  specially  applying  to  the  negotiation  of  the 
securities  a  trust  company,  or  some  personal  trustee  other  than 
the  public  trustee,  is  usually  nominated. 

Partner's  Lien. 

A  mining-  partner  in  certain  cases  seems  to  have  a  lien  for 
his  advances  in  excess  of  those  of  his  co-partner. — Duryea  v. 
Burt,  11  M.  R.  395,  28  Cal.  569;  Beck  v.  O'Connor,  21  Mont. 
109,  53  P.  94,  19  M.  R.  342 ;  Guilders  v.  Neely,  47  W.  Va.  70, 
81  Am.  St.  Rep.  777,  49  L.  R.  A.  468,  34  S.  E.  828,  20  M.  R, 
222 ;  G.  V.  B.  Co.  v.  First  Nat.  Bank,  95  F.  35,  35  C.  C.  A.  510, 
20  M.  R.  66 ;  Greenlee  v.  Steelsmith,  62  S.  E.  459,  64  W  Va. 
353 ;  Connolly  v.  Bouck,  174  F.  312,  98  C.  C.  A.  184. 

See  MINERS'  LIEN;  EXAMINATION  OF  TITLE. 


326  MINERS'  LIEN. 

MINERS'  LIEN. 
To  Whom  Allowed  by  Colorado  Act. 

R.  S.  Sec.  4028. — The  provisions  of  this  act  shall  apply  to  all  per- 
sons who  shall  do  work  or  shall  furnish  materials  or  mining,  milling  or 
other  machinery  or  other  fixtures,  as  provided  in  Section  1  of  this  Act, 
for  the  working,  preservation,  prospecting  or  development  of  any  mine, 
lode  or  mining  claim  or  deposit  yielding  metals  or  minerals  of  any  kind 
or  for  the  working,  preservation  or  development  of  any  such  mine,  lode 
or  deposit,  in  search  of  any  such  metals  or  minerals;  and  to  all  persons 
who  shall  do  work  upon  or  furnish  materials,  mining,  milling  and  other 
machinery  or  other  fixtures,  as  provided  in  Section  1  of  this  act,  upon,  in 
or  for  any  shaft,  tunnel,  mill  or  tunnel  site,  incline,  adit,  drift  or  any 
draining  or  other  improvement  of  or  upon  any  such  mine,  lode,  deposit 
or  tunnel  site;  and  to  every  miner  or  other  person  who  shall  do  work 
upon  or  furnish  any  coal,  power,  provisions,  timber,  powder,  rope,  nails, 
candles,  fuse,  caps,  rails,  spikes,  or  iron,  or  other  materials  whatever,  as 
provided  in  Section  1  of  this  act,  upon  any  mine,  lode,  deposit,  mill  or 
tunnel  site; 

Several  Claims  Worked  Together. 

Provided,  That  when  two  or  more  lodes,  mines  or  deposits  owned  or 
claimed  by  the  same  person  or  persons  shall  be  worked  through  a  common 
shaft,  tunnel,  incline,  adit,  drift  or  other  excavation,  then  all  the  mines, 
mining  claims,  lodes,  deposits  and  tunnel  and  mill  sites  so  owned  and 
worked  or  developed  shall,  for  the  purpose  of  this  act,  be  deemed  one 
mine; 

No  Lien  Against  Leased  Claims. 

And  Provided  Further,  That  this  section  shall  not  be  deemed  to  apply 
to  the  owner  or  owners  of  any  mine,  lode,  mining  claim,  deposit,  mill  or 
tunnel,  where  the  work  or  labor  shall  have  been  performed  for,  or  the 
materials  furnished  to,  a  lessee  or  lessees.  Section  1  as  herein  referred 
to  is  Section  4025  of  the  Revised  Statutes  of  Colorado,  1908. — Act  of 
1899,  p.  266,  as  amended  1915,  p.  332. 

A  further  section  gives  a  lien  on  water  rights  appurtenant. 
Sec.  4031.  And  on  oil  and  gas  wells.  Sec.  4049. 


MINERS'  LIEN.  327 

Procedure  to  Enforce  Lien. 

A  miner  whose  wages  or  contract  money  is  in  default, 
secures  a  lien  by  filing  with  the  County  Recorder  a  statement 
substantially  as  follows: 

FORM  OP  LIEN   STATEMENT. 

KNOW  ALL  MEN  BY  THESE  PRESENTS  :  That  I,  Millard  A.  Pennington, 
do  hereby  give  notice,  of  my  intention  to  hold  and  claim  a  lien  upon  the 
Thomas  a'Eempis  Lode  Mining  Claim  in  Euby  Mining  District,  County  of 
Gunnison,  State  of  Colorado. 

Said  lien  is  claimed  for  work  and  labor  done  by  me  upon  said  lode 
(or  materials  furnished  by  me  to  said  lode  for  the  working  and  develop- 
ment of  the  same  and  used  therein),  as  miner  for  days  pay,  at  the  special 
instance  and  request  of  J.  G.  Edwards,  one  of  the  owners  or  reputed 
owners  of  said  lode,  between  the  first  day  of  July,  A.  D.  1915,  and  the 
25tb  day  of  December,  A.  D.  1915,  both  dates  inclusive,  upon  the  follow- 
ing abstract  of  indebtedness: 

Total  amount  of  indebtedness $742.00 

Total  amount  of  credits 441.00 

Balance  due  claimant $301.00 

That  the  owners  or  reputed  owners  of  said  lode  are  Alva  Adams  and 
J.  G.  Edwards. 

Witness  my  hand  this  second  day  of  January,  A.  D.  1916. 

MILLAED  A.  PENNINGTON, 

Claimant. 
STATE  or  COLORADO,  County  of  Gunnison:  ss. 

Before  me,  the  subscriber,  Chas.  E.  Whitfield,  a  Notary  Public  in  and 
for  said  county,  personally  appeared  Millard  A.  Pennington,  who,  being 
duly  sworn,  saith  that  the  foregoing  statement  and  abstract  of  indebted- 
ness, and  the  matters  and  things  therein  set  forth,  are  true  to  the  best 
knowledge,  information  and  belief  of  affiant. 

MILLARD  A.  PENNINGTON. 

Sworn  and  subscribed  before  me  this  second  day  of  January,  A.  D. 
1916.  Chas.  E.  Whitfield, 

[SEAL.]  Notary  Public. 

When  the  claimant  is  a  sub-contractor  or  employed  by  a 
contractor,  strike  out 

"J.  G.  Edwards,  one  of  the  owners  or  reputed  owners  of  said  lode," 
and  insert 


328  MINERS'  LIEN. 

"at  the  special  instance  and  request  of  Thomas  B.  Crawford,  a  con- 
tractor under  the  owners  of  said  lode. ' ' 

Sub-contractors  must  serve  a  copy  of  such  statement  on  the 
owner  or  his  agent,  at  or  before  the  time  of  filing,  but  if  neither 
the  owner  nor  agent  can  be  found  in  the  county,  an  affidavit  to 
that  effect  shall  be  filed  in  lieu  of  service. 

The  time  to  file  varies  from  one  to  three  months  according 
to  the  class  or  nature  of  the  claim. 

Special  provision  is  made  in  the  act  for  instances  where  the 
names  of  the  owners  are  unknown. 

Group  Claims. 

Where  mines  are  worked  as  a  group  the  whole  are  consid- 
ered as  one  mine  for  lien  purposes. — Tredinnick  v.  lied  Cloud 
Co.,  72  Cal.  78,  13  P.  152. 

A  laborer  working  in.  a  quartz  mill  standing  on  the  claim 
held  to  have  a  lien  on  the  entire  mine. — Thompson  v.  Wise  Boy 
Co.,  9  Ida.  363,  74  P.  958.  Lien  for  mill  building  extended  to 
group  of  mines  to  operate  which  it  was  built. — Salt  Lake  Co. 
v.  Chainman  Co.,  137  F.  632. 

In  Steams-Eoger  Co.  v.  Aztec  Co.,  14  N.  M.  300,  93  P.  706, 
the  lien  was  extended  to  include  a  mill  site  used  in  operating 
the  mine. 

Six  Months  to  Sue. 

An  action  must  be  commenced  to  enforce  the  lien  within  six 
months  after  work  completed  or  the  lien  is  lost. 

General  Statutory  Legislation. 

Miners'  or  mechanics'  liens  are  pure  creations  of  statute,  but 
are  allowed  by  specific  legislation  in  all  the  States.  They 
uniformly  prescribe  some  such  statement  or  notice  equivalent 
to  the  above  form,  but  the  statute  of  the  particular  State  must 
be  looked  to  for  details. 


MINEES'  LIEN.  329 

Alaska. 

A  Special  Lien  Act  for  Alaska  is  A.  C.  36,  Stat.  L.  848. 

Ordinary  placer  mining  is  not  "development"  work  and 
no  lien  lies  for  it.— Pioneer  Co.  v.  Delamotte,  185  F.  752,  108 
C.  C.  A.  90;  Andrews  v.  Ladd,  188  F.  313,  110  C.  C.  A.  291; 
Noble  v.  Gustafson,  204  F.  69, 122  C.  C.  A.  383. 

Decisions. 

For  rule  of  distribution  where  work  has  been  performed  on 
various  parcels  of  group,  see  Bassick  Co.  v.  Schoolfield,  10 
Colo.  46,  14  P.  65;  Malone  v.  Big  Flat  Co.,  76  Cal.  578, 
18  P.  772.  Lien  allowed  for  pumping  and  stoping. — Chappius 
v.  Blankman,  128  Cal.  362,  60  P.  925,  20  M.  E.  461. 

A  party  engaged  in  hauling  ore  from  the  mines  to  the  quartz 
mill  has  no  lien  on  the  mine. — Barnard  v.  McKenzie,  4  Colo. 
251,  9  M.  R.  403.  Watchman  not  entitled  to.— Williams  v. 
Ha  wley,  144  Cal.  97,  77  P.  762. 

A  mining  foreman  or  superintendent  has  a  lien. — Palmer  v. 
Uncas  Co.,  70  Cal.  614,  11  P.  666;  McLaren  v.  Byrnes,  80 
Mich.  275,  45  N.  W.  143.  See  Smallhouse  v.  Kentucky  Co., 
2  Mont.  443,  9  M.  R.  388 ;  Rara  Avis  Co.  v.  Bouscher,  9  Colo. 
385,  12  P.  433 ;  Wasliburn  v.  Inter-Mountain  Co.,  56  Or.  578, 
Ann.  Cas.  1912C,  357,  109  P.  382. 

An  agent  in  charge  of  an  idle  mine  has  no  lien  for  his  wages. 
—Morrison  v.  New  Haven  Co.,  55  S.  E.  611, 143  N.  C.  250. 

In  some  States  it  is  held  that  the  lien  can  not  be  assigned 
until  after  it  has  been  recorded. — Loud  v.  Gold  Bay  Co.,  72 
Or.  155,  142  P.  785. 

It  would  seem  self-evident  that  there  can  be  no  lien  on  ore 
after  it  has  been  severed  and  become  personal  property,  and 
so  it  has  been  decided  as  to  severed  oil. — Black  v.  Giarth,  88 
Kan.  338,  128  P.  183. 

A  lien  lies  for  electricity  furnished  for  light  or  power. — 
Grants  Pass  Co.  v.  Enterprise  Co.,  58  Or.  174,  34  L.  R.  A. 
(N.  S.)  395,  113  P.  859. 


330  M1NEKS'  LIEN. 

Where  the  mine  boards  the  men  the  cook  is  entitled  to  a  lien 
for  his  wages. — Cascaden  v»  Wimbish,  161  F.  241,  88 
C.  C.  A.  277. 

Lien  of  Surveyor  or  Civil  Engineer. 

Whether  R.  S.  Colo.  Sec.  4045  giving  such  lien  is  still  in 
force  is  matter  of  doubt,  but  in  any  event  a  surveyor  seems 
to  be  allowed  a  lien  under  the  terms  of  the  general  clauses  of 
section  4025. 

An  expert  has  no  lien  for  making  a  report  on  a  mine. — 
Lindemann  v.  Belden  Co.,  16  Colo.  App.  342,  65  P.  403. 

Mine  Under  Lease. 

Until  1915  there  were  repeated  legislative  attempts  in  Colo- 
rado to  bind  the  owners'  title  for  work  hired  by  the  lessee, 
with  provisos  and  requirements  of  notice  that  rendered  the 
meaning  uncertain  and  led  to  frequent  litigation,  but  in  that 
year  the  amendment  to  section  4028  set  the  matter  at  rest 
and  denies  any  such  lien. 

In  Nevada  the  lessor's  title  is  bound  unless  he  has  posted 
notice.— Lamb  v.  Goldfield  Co.,  37  Nev.  9, 138  P.  902. 

Reynolds  v.  Norman  is  a  case  holding  the  owner  responsible 
if  he  encouraged  the  lessee's  employee  to  look  to  him  for 
payment.— 57  Colo.  339,  141  P.  466 ;  McClung  v.  Paradise  Co., 
164  Cal.  517,  129  P.  774. 

Against  Option  Holder. 

When  a  mine  is  worked  under  an  option  of  sale  the  terms 
of  such  contracts  vary  so  widely  that  no  general  rule  can  be 
safely  stated  as  to  when  liability  attaches  against  the  fee 
simple  title.  On  a  lease  containing  covenants  for  special  work 
with  privilege  of  purchase  the  owner's  estate  has  been  held 
liable  in  Eaman  v.  Bashford,  4  Ariz.  199,  37  P.  24 ;  Nines  v. 
Miller,  122  Cal.  517,  55  P.  401,  19  M.  R.  609 ;  Colorado  I.  Wks. 
v.  Taylor,  55  P.  942,  12  Colo.  App.  451 ;  Pike  v.  Emp field,  21 


CONVEYANCE.  331 

(\  lo.  App.  161,  120  P.  1054;  Dahlman  v.  Thomas,  88  Wash. 
C53,  153  P.  1065.  To  the  contrary.— Maker  v.  Shull,  11  Colo. 
App.  322,  52  P.  1115 ;  Block  v.  Murray,  12  Mont.  545,  31  P. 
550;  Hadley  Co.  v.  Cummings,  1  Ariz.  258,  64  P.  443;  Reese  v. 
Bald  Mt.  Co.,  133  Cal.  285,  65  P.  578. 

The  employee  of  a  licensee  has  no  lien. — Jurgenson  v.  Diller, 
114  Cal.  491,  55  Am.  St.  Rep.  83,  46  P.  610.  Nor  the  employee 
of  the  claimant  of  a  hostile  title. — Idaho  Co.  v.  Winchell,  6  Ida. 
729,  96  Am.  St.  Rep.  290,  59  P.  533. 

A  lease  with  option  to  purchase  does  not  create  the  relation 
of  vendor  and  purchaser. — Milwaukee  Co.  v.  Tomkins-Cristy 
Co.,  26  Colo.  App.  155,  141  P.  527. 

Miner  hired  by  party  holding  possession  under  executory 
contract  of  purchase  has  no  lien. — Williams  v.  Hawley,  144 
Cal.  97,  77  P.  762.  But  the  real  owner  may  be  estopped  where 
he  allows  the  option  holder  to  assert  title. — Eastwood  v.  Stand- 
ard Co.,  11  Ida.  195,  81  P.  382. 

Lien  allowed  on  dredge  built  by  option  holder  and  extended 
to  entire  group  of  placer  claims. — Colorado  Co.  v.  Stearns- 
Eoger  Co.,  60  Colo.  412,  153  P.  765. 


CONVEYANCE. 

The  ordinary  printed  forms  of  deeds  are  usually  sufficient 
to  convey  mining  claims,  but  owing  to  the  common  practice  of 
employing  conveyancers  totally  disconnected  with  the  legal 
profession,  few  abstracts,  when  the  deeds,  as  recorded  at 
length,  are  examined  from  the  memoranda  on  the  abstract, 
can  show  an  unbroken  line  of  perfect  conveyances. 

A  common  imposition  is  to  present  a  deed  in  the  form  of  a 
warranty  purporting  to  convey  "all  the  right,  title  and  interest 
of  the  party  of  the  first  part,"  Avhich  amounts  to  no  more  than 
a  quit-claim ;  or  to  make  the  consideration  of  a  warranty  deed 
nominal,  which  has  the  same  practical  effect. 


332  CONVEYANCE. 

WARRANTY  DEED  ON  PATENTED  CLATM. 

THIS  INDENTURE,  made  this  tenth  day  of  January,  in  the  year  of  our 
Lord  one  thousand  nine  hundred  and  sixteen,  between  Henry  P.  Lowe,  of 
the  City  and  County  of  Denver,  State  of  Colorado,  party  of  the  first 
part,  and  Willis  B.  Herr  of  Seattle,  State  of  Washington,  party  of  the 
second  part: 

Witnesseth,  that  the  said  party  of  the  first  part,  for  and  in  considera- 
tion of  the  sum  of  ten  thousand  dollars,  to  him  in  hand  paid  by  the  said 
party  of  the  second  part,  the  receipt  whereof  is  hereby  acknowledged, 
hath  granted,  bargained  and  sold,  and  by  these  presents  doth  grant,  bar- 
gain, sell  and  convey  unto  the  said  party  of  the  second  part,  his  heirs 
and  assigns: 

All  the  following  described  real  estate,  situate  in  Alhambra  Mining 
District,  County  of  Park,  State  of  Colorado,  to-wit: 

The  Fickle  Goddess  Lode  Mining  Claim,  known  as  Survey  Lot  No.  777, 
being  1,500  feet  in  length  and  300  feet  in  width,  situate  on  SouLh 
Mountain. 

Together  with  all  and  singular  the  mines,  minerals,  lodes  and  veins 
within  the  lines  of  said  claim,  and  their  dips  and  spurs  and  all  dumps, 
plant,  fixtures,  improvements,  rights,  privileges  and  appurtenances  there- 
unto in  anywise  belonging. 

To  have  and  to  hold  the  lands,  tenements  and  hereditaments  hereby 
conveyed  unto  the  said  party  of  the  second  part,  his  heirs  and  assigns, 
forever. 

And  the  said  party  of  the  first  part,  for  himself,  his  heirs,  executors 
and  administrators,  doth  hereby  covenant  and  agree  with  the  said  party 
of  the  second  part,  his  heirs  and  assigns,  that  the  said  premises  and  every 
part  thereof,  are  free  and  clear  of  and  from  any  and  all  liens,  incum- 
brances,  trusts  and  taxes,  and  that  he,  the  said  party  of  the  first  part, 
his  heirs,  executors  and  administrators,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns,  the  said  premises  and  every  part  thereof, 
against  himself,  his  heirs  and  assigns,  and  every  other  person  lawfully 
claiming  or  to  claim  the  same  or  any  part  thereof,  SHALL  AND  WILL 
WARRANT  AND  FOREVER  DEFEND;  alivays  saving  and  excepting 
the  same  provisos,  reservations  and  limitations  contained  in  the  patent 
of  the  United  States  issued  for  said  survey  lot. 

In  witness  whereof  the  said  party  of  the  first  part  hath  hereunto  set 
his  hand  and  seal.  HENBY  P.  LOWE.  [SEAL.] 

STATE  OF  COLORADO,  City  and  County  of  Denver:  ss. 

I,  Alice  Hatch,  a  Notary  Public  in  and  for  said  City  and  County,  do 
hereby  certify  that  Henry  P.  Lowe,  who  is  personally  known  to  me  to  bo 
the  same  person  described  in  and  who  executed  the  within  indenture, 


CONVEYANCE.  333 

personally  appeared  before  me  this  clay  and  acknowledged  that  he  signed, 
sealed  and  delivered  the  said  indenture  as  his  free  and  voluntary  act  and 
deed  for  the  uses  and  purposes  therein  set  forth. 

Witness  my  hand  and  notarial  seal  this  tenth  day  of  January,  A.  D. 
1916.  ALICE  HATCH, 

[SEAL.]  Notary  Public. 

My  commission  expires  March  4,  A.  D.  1918. 

The  Date  of  Expiration  of  Commission  Is  Required  to  Be 

noted  on  all  acknowledgments  and  affidavits  taken  before  a 
notary  public  under  Colorado  Statute. — R.  S.  Sec.  4664.  And 
many  other  States  have  the  same  requirement. 

Warranty  of  Claim  Entered  for  Patent. 

Use  the  same  form,  inserting  the  words  "to  be"  before 
"issued"  and  adding  the  words  "as  entered  in  the  Land 
Office"  after  the  words  "said  survey  lot"  in  the  saving  clause 
of  the  warranty. 

Warranty  of  Possessory  Claim. 

Use  the  same  form  as  for  "Patented  Claims,"  omitting  the 
words  "Survey  Lot  No. — ,"'  and  omitting  the  clause  in  italics. 
Instead  of  such  clause  insert  "always  saving  and  excepting 
the  United  States  of  America." 

Special  Warranty. 

"When  the  grantor  desires  to  warrant  his  own  chain  of  title, 
but  not  against  parties  claiming  under  other  locations,  insert 
before  the  words  ' '  shall  and  will  warrant, ' '  this  clause : 

"By,  through  or  under  the  said  party  of  the  first  part,  or  his 
grantors." 

QUIT-CLAIM    DEED. 

THIS  INDENTURE,  made  this  thirty-first  day  of  January,  in  the  year  of 
our  Lord  one  thousand  nine  hundred  and  sixteen,  between  Charles  E. 
SJciles,  of  the  City  and  County  of  Denver,  State  of  Colorado,  party  of  the 
first  part,  and  Henry  C.  Beeler,  of  the  County  of  La-ramie,  State  of 
Wyoming,  party  of  the  second  part: 


334  CONVEYANCE. 

Witnessed,  that  the  said  party  of  the  first  part,  for  and  in  considera- 
tion of  the  sum  of  one  thousand  dollars,  to  him  in  hand  paid  by  the  said 
party  of  the  second  part,  the  receipt  whereof  is  hereby  acknowledged, 
hath  remised,  released  and  quit-claimed,  and  by  these  presents  doth 
remise,  release  and  quit-claim  (sell  and  convey)  unto  the  said  party  of 
the  second  part,  his  heirs  and  assigns: 

All  the  following  described  real  estate,  situate  in  The  Consolidated 
Ten  Mile  Mining  District,  County  of  Summit,  State  of  Colorado,  to- wit: 

The  EDELMIBA  lode  mining  claim,  Survey  Lot  No.  666,  1,500  feet  in 
length  and  150  feet  in  width,  located  on  the  west  slope  of  Sheep  Moun- 
tain. 

Together  with  all  and  singular  the  lodes  and  veins  within  the  lines  of 
said  claim,  and  the  dips,  spurs,  mines,  minerals,  dumps,  fixtures,  improve- 
ments, rights,  privileges  and  appurtenances  thereunto  in  anywise  belong- 
ing. 

To  have  and  to  hold  the  lands,  tenements  and  hereditaments  hereby 
conveyed  unto  the  said  party  of  the  second  part,  his  heirs  and  assigns, 
forever. 

In  witness  whereof,  the  said  party  of  the  first  part  hath  hereunto  set 
his  hand  and  seal.  CHARLES  E.  SKILES.  [SEAL.] 

[Acknowledge  as  on  page  332.] 

A  Quit-Claim  Deed  Is  Commonly  Used  Where  the  Title  Is 

possessory,  and  where  the  title  is  clear  it  passes  the  title  as 
effectually  as  a  warranty.  But  the  grantee  in  a  quit-claim  may 
be  chargeable  with  notice  of  equities  not  chargeable  to  a  pur- 
chaser by  a  general  or  special  warranty. — Hannan  v.  Seiden- 
topf,  113  Iowa  658,  86  N.  W.  44.  Where  the  grantee  knows 
that  another  is  in  adverse  possession  of  what  he  is  buying  he  is 
not  an  innocent  purchaser. — Wetzstein  v.  Largey,  27  Mont. 
212,  70  P.  717. 

Mining  Deeds. 

There  has  come  into  use  a  form  of  deed  called  a  mining  deed, 
the  blanks  for  which  vary.  They  contain  after  the  space  left 
for  description,  the  formula  "together  with  the  dips,"  etc., 
substantially  as  in  the  above  forms.  A  deed  to  a  mine  does  not 
differ  from  a  deed  to  other  real  property  in  the  same  condition 
of  title,  except  in  the  description,  and  the  phrase  "together 


CONVEYANCE.  335 

with,"  etc.,  which  is  really  part  of  the  description.  Most  of 
these  deeds  contain  in  their  granting  clause  the  operative 
words  of  a  warranty  in  connection  with  the  operative  words 
of  a  quit-claim — "grant,  bargain  and  sell,"  "remise,  release 
and  quit-claim." 

But  their  legal  effect  is  more  that  of  a  quit-claim  than  that 
of  a  warranty,  except  that  the  words  "grant,  bargain,  sell 
and  convey"  have  the  special  force  of  passing  an  after 
acquired  title,  and  by  legislation  the  word  "grant"  in  some 
States  is  made  to  imply  a  warranty  against  incumbrances.  In 
examining  abstracts  they  will  of  course  be  considered  as  trans- 
ferring the  grantor's  interest,  but  no  lawyer  or  trained  con- 
veyancer would  advise  such  deed,  or  any  form  of  statutory 
deed  where  certain  words  are  declared  to  have  a  certain 
talismanic  charm,  in  preference  to  the  known,  fixed  and  under- 
stood grants  and  covenants  of  a  common  law  warranty. 

Short  Form  of  Deed. 

By  Colorado  Act  of  1887  (Laws,  p.  226)  short  forms  of 
deeds  were  introduced. 

' '  The  implied  warranty  which  the  vendor  in  ignorance  of  its 
nature  is  made  liable  for  by  this  statutory  form,  is  totally 
inapplicable  to  mining  claims  whether  patented  or  possessory. 
It  would  make  the  vendor  liable,  if  liable  for  anything,  for  a 
fee  simple  title  even  to  making  good  the  exceptions  on  the  face 
of  the  patent.  If  used  in  conveying  a  possessory  claim  there 
is  a  breach  of  the  warranty  the  moment  the  instrument  is 
delivered.  "What  is  conveyed  by  the  so-called  short  form  of 
quit-claim  deed,  it  is  impossible  to  say.  The  entire  set  of  forms 
should  be  discarded." 

The  above  paragraph  is  the  language  used  about  these  statu- 
tory forms  of  deeds  in  the  sixth  edition  of  this  book.  We  have 
never  qualified  it  and  only  add  that  the  act  was  repealed  at  the 
1889  session. 

Description. 

The  exact  description  of  a  located  lode  or  placer  is  "The 
Lode  Mining  Claim"  or  "The Placer  Mining 


336  CONVEYANCE. 

Claim."  If  patented  add  the  words  "Survey  Lot  No " 

The  number  of  the  mineral  entry  is  superfluous,  and  to 
describe  the  premises  by  metes  and  bounds  is  not  good  convey- 
ancing, except,  of  course,  when  a  fraction  of  a  claim  is  con- 
veyed. The  name  is  usually  a  sufficient  description. — Smith  v. 
Sherman  Co.,  12  Mont.  524,  31  P.  72;  Glacier  Co.  v.  "Willis,  127 
U.  S.  471,  472,  32  L.  Ed.  172,  8  Sup.  Ct.  1214,  17  M.  R.  127. 
The  word  "mine"  is  a  dangerous  term  and  to  be  avoided,  as 
often  an  entire  group  of  claims  are  known  collectively  by  the 
name  of  one  mine,  and  such  entire  group  might  pass,  and,  in 
fact,  might  be  intended  to  pass  by  the  use  of  such  sweeping 
term.— Smith  v.  Sherman  Co.,  12  Mont.  524,  31  P.  72 ;  Phillips 
v.  Salmon  R.  Co.,  9  Ida.  149,  72  P.  886.  The  word  "lode"  is 
commonly  used  as  synonymous  with  lode  mining  claim. — 
Buckeye  Co.  v.  Carlson,  16  Colo.  App.  446,  66  P.  168,  21 
M.  R.  499. 

A  contract  to  convey  a  mining  claim  by  name  implies  that 
vendor  has  a  located  claim  and  not  a  mere  prospect. — 
La  Grande  Co.  v.  Shaw,  44  Or.  416,  72  P.  795,  74  P.  919. 

Misdescribing  a  lode  as  a  placer  is  immaterial  where  the 
balance  of  the  description  plainly  indicates  what  was  intended. 
—Las  Vegas  Co.  v.  Summerfield,  35  Nev.  229,  129  P.  303,, 

Unrecorded  Claim. 

An  incomplete  location  may  be  transferred  by  parol  and  the 
record  completed  by  the  purchaser. — Doe  v.  Waterloo  Co., 
70  F.  455,  456,  17  C.  C.  A.  190,  18  M.  R.  265;  Miller  v.  Chris- 
man,  140  Gal.  440,  98  Am.  St.  Rep.  63,  73  P.  1083,  74  P.  444. 
A  prospect  on  the  public  domain  may  be  the  subject  of  lease  or 
conveyance.— Weed  v.  Snook,  144  Cal.  439,  77  P.  1023. 

Deed  Subdividing  Lode  Claim — Dip. 

Owing  to  the  relation  of  the  dip  to  the  strike,  when  a  line  is 
drawn  across  a  lode  claim  at  right  angles  to  the  side  at  the 
surface,  such  line  being  intended  for  the  division  line  between 
the  part  retained  and  the  part  sold,  such  line  when  carried 


CONVEYANCE.  337 

vertically  downward  may  cut  off  the  vein  on  its  dip  in  such  a 
way  as  to  divide  it  in  an  unexpected  manner.  If,  for  instance, 
at  the  surface,  it  begins  at  the  "west  end  of  discovery  shaft," 
it  may  leave  the  bottom  of  such  shaft  entirely  on  one  fraction 
of  the  lode  within  a  comparatively  few  feet  of  sinking.  Such 
result  or  a  similar  result  will  invariably  occur  where  the  vein 
has  a  dip,  unless  the  end  lines  are  at  an  exact  right  angle  to 
the  strike  of  the  vein.— See  Plat,  p.  217. 

The  deed  of  a  mining  claim  with  the  ordinary  verbiage  does 
not  convey  lodes  dipping  underneath  the  side  lines. — Clark 
Montana  Co.  v.  Suite  Co.,  233  F.  547,  548. 

Apex  Rights  of  Irregular  Fraction. 

Where  the  whole  lode  is  conveyed  there  is  no  doubt  that  the 
deed  carries  the  right  to  follow  it  on  the  dip  to  the  full  extent 
the  grantor  may  have  had  such  right.  The  same,  if  a  certain 
number  of  feet  off  either  end  of  the  claim  are  conveyed,  to  the 
extent  of  feet  granted. 

But  where  a  strip  or  irregular  fraction  of  the  claim  is  carved 
out  and  sold  the  question  of  the  apex  rights  of  such  segregated 
parcel  arises,  and  the  tendency  of  the  decisions  is  that  the 
grantee  has  the  right  to  follow  on  the  dip  whatever  veins  may 
apex  on  the  ground.  Of  course  such  right  would  be  limited 
by  the  end  lines  and  planes  projected  from  the  end  lines  of 
the  claim. 

In  Stinchfield  v.  Gillis,  96  Cal.  33,  30  P.  839,  17  M.  R.  497, 
it  was  held  that  all  veins  apexing  within  the  surface  area  are 
conveyed  although  carried  by  the  dip  into  other  land  of  the 
grantor. 

In  Boston  &  M.  Co.  v.  Montana  Co.,  89  F.  529,  19  M.  R. 
480,  it  was  held  that  the  grantee  could  follow  on  the  projection 
of  one  of  the  lines  of  the  pentagonal  tract  described,  the  same 
as  if  it  were  an  end  line  in  a  patent.  This  gave  to  one  party 
diverging,  and  to  the  other  converging,  end  planes.  The  con- 
tention that  each  party  was  to  follow  as  much  of  the  vein  as 
apexed  within  his  own  territory  both  governed  by  parallel  end 


338  CONVEYANCE. 

line  planes  always  seemed  to  us  the  more  just,  simple  and 
reasonable  rule  to  apply  to  this  class  of  cases. 

The  rule  contended  for  has  been  adopted  by  the  Supreme 
Court  of  Montana,  and  the  ruling  in  the  Federal  case  disap- 
proved.—Montana  Co.  v.  Boston  Co.,  27  Mont.  288,  70  P.  1114, 
22  M.  R.  471. 

In  settlement  of  disputed  title  between  the  Nine  Hour  and 
St.  Louis  lodes,  the  Montana  Co.  conveyed  to  the  St.  Louis  Co. 
a  strip  of  the  disputed  ground  30  feet  wide  by  400  feet  in 
length.  The  deed  conveyed  the  strip  with  the  dips,  spurs  and 
angles  and  "all  the  mineral  therein  contained."  Afterwards  a 
vein  not  then  known  to  exist  was  found  to  dip  underneath  this 
strip.  The  Federal  Courts  below  allowed  the  grantor  to  work 
this  vein  underneath  the  strip,  but  the  Supreme  Court  finally 
held  that  the  words  above  quoted  were  a  common  law  grant 
and  covered  the  ore  in  this  dipping  vein  between  the  vertical 
lines  of  the  strip.  And  they  further  intimated  that  the  grantor 
might  have  a  right  of  way  to  get  at  its  vein  beyond  the  strip. 
— Montana  M.  Co.  v.  St.  Louis  M.  Co.,  204  U.  S.  204,  51  L.  Ed. 
444,  27  Sup.  Ct.  254;  overruling  102  F.  430,  42  C.  C.  A.  415, 
20  M.  R.  507  and  St.  Louis  M.  Co.  v.  Montana  M.  Co.,  104  F. 
664,  44  C.  C.  A.  120,  56  L.  R.  A.  725,  21  M.  R.  57. 

Construction  of  deed  conveying  fraction  of  a  claim  with  the 
holding  that  it  estopped  the  grantor  from  following  under- 
neath its  surface  the  vein  of  an  outside  lode  on  the  dip.  (It 
follows  though  without  citing  it,  the  construction  given  to  the 
Nine  Hour  deed  in  Montana  M.  Co.  v.  St.  Louis  M.  Co.,  204 
U.  S.  204,  51  L.  Ed.  444,  27  Sup.  Ct.  254.)—  Eiley  v.  North 
Star  Co.,  152  Cal.  549,  93  P.  194,  195. 

Cross  Lodes. 

The  Stinchfield  v.  Gillis  case,  supra,  as  reported  in  107  Cal. 
84,  40  P.  98,  18  M.  R.  195,  holds  that  the  grantor  can  not  claim 
for  his  vein  retained,  any  rights  as  a  cross  lode,  without  special 
reservation  to  that  effect. 

In  Bogart  v.  Amanda  Co..  the  Supreme  Court  of  Colorado 
construed  an  agreement  between  overlapping  claimants  for  a 


CONVEYANCE.  339 

deed  of  surface  ground  under  its  peculiar  wording  and  the 
law  of  cross  lodes  as  understood  at  that  time  to  be  not  limited 
to  the  surface  but  to  convey  all  veins  except  the  cross  lode 
mentioned  in  the  contract.— 74  P.  882,  32  Colo.  32. 

Same  Ground  Covered  by  Conflicting  Locations. 

The  owners  of  the  Edna,  after  record,  changed  their  stakes 
so  as  to  produce  a  conflict  with  the  Lightning.  They  then  sold 
the  Edna  by  the  recorded  description  and  afterwards  bought 
the  Lightning.  Held,  that  they  were  estopped  to  set  up  the 
Lightning  title  against  the  ground  in  conflict. — Shreve  v.  Cop- 
per Bell  M.  Co.,  11  Mont.  309,  28  P.  315. 

Where  the  same  lode  or  ground  is  covered  by  more  than  one 
location  owned  by  the  same  grantor  his  deed  of  one  may  be 
construed  to  convey  the  title  under  both  locations. — Weill  v. 
Lucerne  Co.,  11  Nev.  200,  3  M.  R.  372;  Phillpotts  v.  Elasdel,. 
4  M.  R.  341,  8  Nev.  61 ;  Lebanon  Co.  v.  Consolidated  Rep.  Co., 
6  Colo.  371,  372;  Shoshone  Co.  v.  Eutter,  87  F.  801,  31  C.  C.  A. 
223,  19  M.  R.  356.  For  construction  of  conveyance  in  general 
terms  after  portion  of  a  survey  lot  had  been  segregated  by 
judgment,  see  Mollie  Gibson  Co.  v.  Thatcher,  57  F.  865, 
6  C.  C.  A.  621. 

The  locator  of  a  lode  claim  afterwards  secured  a  placer 
patent  covering  the  same  ground  after  he  had  conveyed  a  part 
of  the  lode  location  to  third  parties.  Held,  that  his  patent 
perfected  title  to  his  grantee  for  the  ground  conveyed. — 
Collins  v.  McKay,  36  Mont.  123,  122  Am.  St.  Rep.  334,  92 
P.  295. 

Deed  Covenanting  for  Annual  Labor. 

In  McDougall  v.  O'Connell  an  interest  in  three  lode  claims 
had  been  sold  to  the  plaintiff  with  a  proviso  that  the  purchaser 
might  demand  back  the  purchase  money  at  the  end  of  three 
years,  "he  keeping  up  his  share  of  the  assessment  work."  He 
was  allowed  to  recover  notwithstanding  his  failure  to  comply 
with  the  condition  and  the  defendant  lost  both  his  mine  and 


340  CONVEYANCE. 

the  price  of  it.  There  was  a  dissenting  opinion,  which  dis- 
senting opinion  was  emphatically  the  right  of  the  case.  72 
Wash.  349,  130  P.  562. 

Severance  of  Mines  and  Surface  Reservation. 

Where  minerals  are  specially  granted  or  where  surface  is 
granted  without  the  minerals,  there  should  be  special  cove- 
nants for  support  of  the  soil  and  buildings  or  for  right  of 
entry  to  get  at  the  minerals  reserved,  as  the  case  may  be; 
although  in  such  cases  those  incidents  are  implied  to  the  extent 
necessary  to  enjoy  each  severed  estate.  See  p.  300. 

FORM   OF    RESERVATION. 

Insert  after  the  clause  "To  have  and  to  hold": 

Always  saving,  excepting  and  reserving  unto  the  said  par.ty  of  the 
first  part,  his  heirs  and  assigns,  all  mines  and  minerals,  lodes,  veins  and 
deposits  found  or  to  be  found  under  or  within  the  lines  or  area  of  the 
above  granted  premises,  together  with  their  dips,  with  such  reasonable' 
use  of  the  surface  ground  as  may  be  necessary  to  win,  work  and  carry 
away  said  minerals  so  excepted  and  reserved. — Bogers,  p.  880;  Bain- 
bridge,  p.  480. 

While  the  distinction  between  an  exception  and  a  reservation 
is  well  established  the  words  are  often  used  interchangeably. 
—Moore  v.  Griffin,  72  Kan.  164,  4  L.  B.  A.  (N.  S.)  477,  83 
P.  395. 

Witnesses. 

No  attesting  witnesses  are  required  to  deed  conveying  land 
in  Colorado  or  the  other  States  or  Territories  of  the  Pacific 
slope  excepting  Utah  and  Wyoming,  which  require  one  attest- 
ing witness,  and  Alaska  and  Oregon,  which  require  two.  A 
deed  signed  with  the  grantor's  mark  must  be  always  witnessed 
on  general  principles.  A  deed  of  a  mining  claim  in  Alaska 
not  acknowledged  and  not  having  two  witnesses  is  void. — 
Alaska  Ex.  Co.  v.  Northern  M.  Co.,  152  F.  145,  81  C.  C.  A. 
363;  Waskey  v.  Chambers,  224  U.  S.  564,  56  L.  Ed.  885,  32 
Sup.  Ct.  597,  Ann.  Gas.  1913D,  998.  But  the  witnesses  need 


CONVEYANCE.  341 

not  be  disinterested  persons. — Hallo,  v.  Cowden,  170  F.  559, 
95  C.  C.  A.  325. 

Dower— Wife's  Signature. 

In  all  those  States  where  the  right  of  dower  exists  the  wife 
must  of  course  join  in  the  husband's  deed,  in  order  to  Bar  her 
right.  These  States  (and  the  Eastern  States  generally)  are 
Alaska,  Montana,  Oregon  and  Utah.  In  Arizona  the  wife  must 
join  in  husband's  deed  except  for  unpatented  mining  claims. 

The  widow  has  no  right  of  dower  in  a  mining  claim  held  by 
possessory  title. — Black  v.  Elkhorn  Co.,  163  U.  S.  445,  41 
L.  Ed.  221,  16  Sup.  Ct.  1101,  18  M.  R.  375.  Otherwise  as  to 
mines  owned  in  fee. — Whittaker  v.  Lindley,  8  Ky.  Law  Rep. 
690,  3  S.  W.  9 ;  Stoughton  v.  Leigh,  5  M.  R.  47,  1  Taunt.  402. 

Husband's  Signature  Necessary. 

The  husband  is  required  to  join  in  the  wife's  deed  in  Alaska. 
In  California  and  Washington,  in  a  conveyance  of  community 
property  the  husband  must  join  in  the  wife's  deed  and  the 
wife  in  the  husband's  deed.  In  all  cases  where  both  are 
required  to  join,  it  is  assumed  that  a  separate  acknowledgment 
by  the  wife  is  required. 

Corporate  Deeds. 

The  presence  of  the  corporate  seal  is  prima  facie  proof  that 
it  is  the  deed  of  the  corporation.  A  third  party  can  not  attack 
the  validity  of  a  corporate  deed  for  non-complmnce  with  the 
statutory  requirements.  Such  requirements  are  for  the  pro- 
tection of  the  stockholders.— Galbraith  v.  Shasta  Co.,  143  Cal. 
94,  76  P.  901. 

Acknowledgments. 

An  acknowledgment  before  a  notary  public  is  customary 
and  valid  in  any  of  the  Pacific  States  or  Alaska,  though  the 
land  lies  in  one  State  and  the  acknowledgment  is  taken  in 
another.  Where  the  deed  conveys  land  in  another  State  a 


342  CONVEYANCE. 

commissioner  of  deeds  for  such  State,  if  accessible,  is  always 
authorized  to  take  the  acknowledgment.  When  taken  before 
this  officer  no  certificate  of  his  official  character  is  required. 

Other  officers  are  named  in  the  statutes  of  the  several  States, 
but  a  notary  public  within  the  State,  a  commissioner  or  notary 
without  the  State,  and  a  consul  in  foreign  countries  are  legal- 
ized to  prove  deeds  by  this  form  practically  everywhere. 

The  acknowledgment  is  not  a  part  of  the  deed  proper  but  a 
statutory  mode  of  providing  proof  of  its  execution  and 
delivery.  An  unacknowledged  deed  may  be  good  if  there  is 
extrinsic  proof  of  those  facts.  Arizona  is  an  exception  to  this 
rule  and  the  acknowledgment  in  that  State  has  been  held  to 
be  an  essential  part  of  the  deed. — Lewis  v.  Herrera,  208  U.  S. 
309,  52  L.  Ed.  506,  28  Sup.  Ct.  412. 

For  form  of  acknowledgment  by  an  individual  see  page  332. 
The  following  are  correct  forms  in  the  case  of  corporations 
and  deeds  executed  under  power  of  attorney: 

ACKNOWLEDGMENT  BY  CORPORATION. 


STATE  OF  COLORADO,  j 
Hinsdale  County,      j 


I,  William  L.  Siegmund,  a  Notary  Public  in  and  for  said  County,  do 
hereby  certify  that  Everett  E.  Ellinwood,  President  of  the  Coldstream 
Mining  Company,  who  is  personally  known  to  me  to  be  such  President, 
and  the  same  person  who  as  such  President,  subscribed  the  corporate 
name  and  caused  the  corporate  seal  of  said  Company  to  be  affixed  to  the 
above  Indenture,  personally  appeared  before  me  this  day  and  acknowl- 
edged the  same  to  be  the  free  and  voluntary  act  and  deed  of  the  said 
corporation  for  the  uses  and  purposes  therein  set  forth. 

Witness  my  hand  and  Notarial  Seal  this  third  day  of  January,  A.  D. 
1915.  William  L.  Siegmund, 

[SEAL.]  Notary  Public. 

My  commission  expires  April  12,  1916. 

ACKNOWLEDGMENT  BY  ATTORNEY  IN   FACT. 

UNITED  STATES  OF  AMERICA,  DISTRICT  OF  COLORADO:  ss. 

I,  Charles  W.  Bishop,  Clerk  of  the  Circuit  Court  of  the  United  States 
in  said  District,  do  hereby  certify  that  Jean  F.  Webb,  Attorney  in  Fact, 
of  the  within  named  George  W.  Gibson,  who  is  personally  known  to  me 
to  be  such  Attorney  in  Fact,  and  the  same  person  within  described  as 


SALES  AND  OPTIONS.  343 

such  Attorney  in  Fact,  and  who  affixed  the  name  and  seal  of  his  said 
principal  to  the  within  Indenture,  personally  appeared  before  me  this  day 
and  acknowledged  the  said  Indenture  to  be  his  free  and  voluntary  act 
and  deed  and  the  free  and  voluntary  act  and  deed  of  the  said  George  W. 
Gibson  for  the  uses  and  purposes  therein  set  forth. 

Witness  my  hand  and  the  Seal  of  said  Court,  this  third  day  of  January, 
A.  D.  1915.  CHARLES  W.  BISHOP, 

[SEAL.]  Clerk  of  Court. 


SALES  AND  OPTIONS. 


Executory  contracts  for  the  sale  of  mines  are  of  two  distinct 
kinds — either  binding  both  seller  and  buyer  or  binding  only 
on  the  vendor  to  sell,  the  latter  being  the  more  usual,  and 
commonly  in  the  form  of  an  option  or  title  bond.  Such  option 
or  title  bond,  to  take  it  out  of  the  class  of  contracts  known  as 
naked  options  or  unilateral  contracts,  which  have  been  uni- 
formly held  void  for  want  of  mutuality,  should  always  show 
a  consideration  more  than  nominal ;  either  a  payment  made  or 
a  binding  promise  to  make  a  payment  or  to  develop  the  prop- 
erty or  to  be  at  an  expenditure  in  some  form  to  offset  the 
vendor's  promise  to  convey  the  mine. 

Naked  title  bonds  are  mere  options,  and  therefore  without 
consideration  and  revocable. — Smith  v.  Reynolds,  2  M.  R.  227, 
8  F.  696,  3  McCrary  157;  Finnerty  v.  Fritz,  5  Colo.  174, 
1  M.  R.  437;  Gordon  v.  Darnell,  2  M.  R.  220,  5  Colo.  302; 
Cortelyou  v.  Barnsdall,  236  111.  138,  86  N.  E.  200.  But  where 
the  holder  of  the  bond  pays  a  part  of  the  consideration  or 
agrees  to  develop  the  property  or  in  any  other  manner  gives, 
a  valuable  consideration  the  agreement  is  valid  as  a  contract 
binding  on  the  parties,  and  when  recorded  binds  the  property. 
—Pennsylvania  M.  Co.  v.  Smith,  56  Atl.  426,  207  Pa.  210. 

An  option  without  consideration  may  be  recalled,  am!  a 
commission  promised  to  a  party  in  case  sale  was  made  falls 
with  the  option.— Mitcliel  v.  Gray,  8  Cal.  App.  423,  97  P.  160. 


344  SALES  AND  OPTIONS. 

The  right  of  choice  is  what  the  option  holder  pays  for.  An 
option  contract  is  necessarily  non-mutual. — Pittslurg  Co.  v. 
Bailey,  90  P.  803,  76  Kan.  42,  12  L.  R.  A.  (N.  S.)  745. 

A  party  has  the  right  to  agree  to  convey  property  to  which 
he  has  at  the  time  no  title. — Donovan  v.  Hanauer,  32  Utah  317, 
90  P.  569. 

The  parties  made  an  agreement  under  which  $500  was  paid 
and  $14,500  promised  to  be  paid — construed  as  an  absolute 
contract  of  sale,  although  styled  in  the  wording  of  the  contract 
an  "option."— Chenoweth  v.  Butter  field,  11  Ariz.  315,  94 
P.  1131. 

When  the  option  holder  paid  an  installment  and  was  placed 
in  possession  with  the  right  to  mine,  viewed  in  connection 
with  all  the  other  facts,  the  option  merged  into  an  agreement 
for  absolute  purchase. — Reed  v.  Hickey,  13  Cal.  App.  136, 
109  P.  38. 

Agreement  construed  as  an  executory  contract  and  not  a 
mere  option.— Pritclwrd  v.  McLeod,  205  F.  24,  123 
C.  C.  A.  332. 

TITIJE   BOND. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  I,  Lawrence  Lewis,  of  the 
City  and  County  of  Denver,  State  of  Colorado,  am  held  and  firmly  bound 
unto  Frank  A.  Maxwell,  of  the  County  of  Clear  Creek,  in  said  State,  in 
the  penal  sum  of  forty  thousand  dollars,  to  be  paid  to  the  said  Frank  A. 
Maxwell,  his  heirs,  executors,  administrators  or  assigns;  to  which  pay- 
ment, well  and  truly  to  be  made,  /  do  bind  myself,  my  heirs,  executors 
and  administrators,  and  every  of  them,  jointly  and  severally  firmly 
by  these  presents. 

•     Witness  my  hand  and  seal,  this  fourth  day  of  May,  in  the  year  of  our 
Lord  one  thousand  nine  hundred  and  sixteen. 

WHEREAS,  The  above  bounden  obligor  hath  this  day  sold  to  the  said 
Frank  A.  Maxwell  certain  real  estate  situate  in  Battle  Mountain  Mining 
District,  County  of  Eagle,  State  of  Colorado,  to-wit:  The  Legality  Lode 
Mining  Claim,  Survey  Lot  No.  99,  containing  1,500  feet  in  length  by  300 
feet  in  width,  on  Battle  Mountain. 

Together  with  all  and  singular  the  lodes  and  veins  within  the  lines  of 
said  claim  (and  not  excepted  on  the  official  plat)  and  all  mines,  min- 
erals, dumps,  plant,  fixtures,  machinery,  tramways,  improvements,  rights, 
privileges  and  appurtenances  thereunto  in  anywise  belonging. 


SALES  AND  OPTIONS.  315 

• 

For  the  sum  of  twenty  thousand  dollars  to  be  paid  to  the  said  obligor, 
his  executors,  administrators  or  assigns,  or  deposited  to  his  credit  in  the 
First  National  Bank,  Denver,  Colorado,  on  or  before  the  tenth  day  of 
May,  A.  D.  1917,  and  for  the  further  consideration  that  said  obligee 
shall,  before  the  said  last  mentioned  date,  expend  the  sum  of  at  least 
one  thousand  dollars  in  the  actual  underground  development  of  said 
property. 

Now,  THEREFORE,  the  condition  of  the  above  obligation  is  such  that 
if  the  above  bounden  obligor,  his  heirs  or  assigns,  on  payment  or  deposit 
of  the  said  sum  of  twenty  thousand  dollars  in  manner  aforesaid,  and 
expressly  within  the  time  limited  as  aforesaid,  time  being  of  the  essence 
of  this  contract,  as  to  such  payment  or  deposit,  shall  make,  execute, 
acknowledge  and  deliver  at  his  own  cost  and  charges,  good  and  sufficient 
deed  or  deeds  of  general  warranty  to  the  said  Frank  A.  Maxwell,  his 
heirs  and  assigns,  or  to  such  person,  persons  or  company  as  he  shall  nomi- 
nate, conveying  said  premises  with  good  and  perfect  title,  free  from 
encumbrance,  then  this  obligation  to  be  void,  otherwise  to  remain  in  full 
force  and  virtue. 

LAWRENCE  LEWIS.     [SEAL.] 

In  consideration  of  the  option  expressed  in  this  obligation,  I  agree  to 
expend  the  sum  of  $1,000  therein  mentioned  in  the  actual  underground 
development  of  the  above  described  property  within  three  months  from 
the  date  of  this  Bond. 

Witness  my  hand  and  seal  this  fourth  day  of  May,  A.  D.  1916. 

PRANK  A.  MAXWELL.     [SEAL.] 

Where  one  of  several  parties  executes  a  mining  agreement 
on  behalf  of  all,  with  their  knowledge,  they  may  (in  instances) 
be  held  without  signing.— Rice  v.  Ege,  16  M.  R.  179,  42  F.  661. 

Time  Is  of  the  Essence  of  the  Contract  in  a  Title  Bond  on  a 

mine.— Presidio  Co.  v.  Bullis,  68  Tex.  581,  4  S.  W.  860;  Merk 
v.  Bowery  Co.,  31  Mont.  298,  78  P.  519.  Or  in  suit  for  specific 
performance. — Snider  v.  Yarbrough,  (Mont.)  115  P.  411; 
Durant  v.  Comegys,  3  Ida.  204,  28  P.  425.  And  in  mining 
contracts  generally. — Waterman  v.  Banks,  144  U.  S.  394,  36 
L.  Ed.  479,  12  Sup.  Ct.  646.  It  may  be  made  so  either  from 
the  nature  of  the  subject  matter  or  the  contract  of  the  parties. 
—Settle  v.  Winters,  2  Ida.  215,  10  P.  216;  Champion  Co.  v. 
Champion  Mines,  164  Cal.  205,  128  P.  315. 


346  SALES  AND  OPTIONS. 

The  doctrine  of  laches  is  peculiarly  applicable  to  mining 
claims.— Gamble  v.  HancJiett,  34  Nev.  351,  126  P.  111.  Time 
is  of  the  essence  of  any  contract  in  the  purchase  of  an  unde- 
veloped mine. — Gaines  v.  Chew,  167  F.  630. 

But  it  may  be  waived  verbally  or  by  allowing  the  vendee  to 
work  on  assurances  of  extension. — Mason  v.  Sieglitz,  22  Colo. 
320,  44  P.  588 ;  Presidio  Co.  v.  Bullis,  supra.  And  delay  may 
be  explained  even  in  a  specific  performance  ease. — Hosmer  v. 
Wyoming  Co.,  129  F.  884,  65  C.  C.  A.  81. 

Strict  performance  may  be  waived  and  tender  of  deed  not 
necessary  when  vendor  has  refused  to  perform. — Bennie  v. 
Becker  Co.,  17  Ariz.  198, 149  P.  749. 

Time,  though  made  the  essence  of  the  contract,  may  be 
waived  or  relieved  against  in  equity  upon  proper  facts. — 
Wheeling  Co.  v.  Elder,  46  S.  E.  357,  54  W.  Va.  335. 

An  option  must  be  exercised  within  the  time  limit — even 
vis  major  does  not  excuse. — Jennings  Oil  Synd.  v.  Houssiere 
Co.,  119  La.  793,  44  So.  481. 

Executory  contract  of  sale  set  aside  for  vendee  letting  mine 
get  into  debt. — Barandun  v.  Barandun  M.  Co.,  171  Cal.  250, 
156  P.  473. 

Laches  in  Fraud  Cases. 

The  right  to  rescind  must  be  exercised  at  once  upon  dis- 
covery of  the  fraud.  Buyers  of  a  mine  can  not  after  such 
alleged  discovery  work  the  property  and  thereafter  elect  to 
rescind.— Richardson  v.  Lowe,  149  F.  625,  79  C.  C.  A.  317; 
Old  Colony  Co.  v.  Carrick,  153  F.  173,  82  C.  C.  A.  347.  The 
absence  of  prompt  action  to  rescind  is  an  election  to  affirm. 
—Steinbeck  v.  Bon  Homme  M.  Co.,  152  F.  333,  81  C.  C.  A.  441. 

The  parties  will  not  be  allowed  to  stand  by  and  await  the 
result  of  the  adventure  before  suit. — Blen  v.  Bear  River  Co., 
3  M.  R.  435,  20  Cal.  602,  81  Am.  Dec.  132. 

Delay  without  sufficient  excuse  bars  the  remedy. — Great 
West  Co.  v.  Woodmas  Co.,  14  Colo.  90,  23  P.  908;  Jewell  v. 
Trilby  Mines,  229  F.  298. 


SALES  AND  OPTIONS.  347 

Where  the  bill  is  not  on  its  face  barred  by  the  statute  of 
limitations  the  defense  of  laches  must  be  pleaded. — Allen  v. 
RUnche  M.  Co.,  102  P.  1072,  46  Colo.  199.  The  decisions  on 
this  point  are  by  no  means  uniform  but  this  case  gives  a  safe 
rule  for  the  pleader  to  follow.  See  Hall  v.  Nath,  81  P.  249, 
33  Colo.  500. 

When  with  full  knowledge  of  the  alleged  fraud  a  party 
acquiesces  in  the  purchase  for  a  considerable  period  it  is  a 
waiver  of  the  defense. — Turk  v.  Budman,  42  Mont.  1,  111 
P.  739. 

Extensions,  Renewals. 

The  weight  of  authority  is  that  where  not  in  contravention 
of  the  terms  of  any  statute  a  verbal  promise  to  extend  time 
is  valid ;  and  a  promise  to  do  the  annual  labor  on  the  claims  is 
a  good  consideration  for  such  an  extension. — Stamey  v. 
Hemple,  173  F.  61,  97  C.  C.  A.  379. 

A  supplemental  contract  based  on  changed  conditions  does 
not  need  an  express  consideration. — Russell  v.  Lambert,  14 
Ida.  284,  L.  R.  A.  1915B,  20,  94  P.  54. 

Where  two  together  entered  into  a  contract  to  secure  a  mine, 
each  to  bear  his  share  of  the  advance  payments,  and  one  refuses 
to  contribute,  the  other  may  rightfully  secure  a  further  option 
in  his  own  name  without  liability  to  account  to  his  associate. 
—Gaines  v.  Chew,  167  F.  630. 

Commissions. 

When  the  office  of  the  agent  is  merely  to  bring  the  parties 
together  and  he  does  not  negotiate  the  sale  he  is  not  estopped 
to  receive  pay  from  both  parties. — McLure  v.  Luke,  154  F.  647, 
24  L.  R,  A.  (N.  S.)  659,  84  C.  C.  A.  1. 

Where  the  agent  of  the  seller  agrees  with  the  agent  of  the 
buyer  to  pool  their  commissions  it  is  a  contract  to  take  pay 
from  both  sides  and  the  agent  of  the  seller  can  not  recover 
against  his  principal.— Corner  v.  O'Neill,  207  Mo.  632,  106 
S.  W.  10. 


348  SALES  AND  OPTIONS. 

Where  a  mining  company  consummate  a  sale  secured  by  a 
broker  it  can  not  accept  the  benefit  of  his  agency  and  refuse 
to  pay  a  commission,  on  the  ground  that  its  officer  conducting 
the  negotiations  had  not  reported  the  contract.  Such  neglect 
of  such  officer  is  chargeable  to  the  company. — Dillard  v.  Ollalla 
M.  Co.,  52  Or.  126,  94  P.  966. 

A  broker  is  entitled  to  a  pro-rata  on  the  price  paid  when  the 
original  price  asked  has  been  reduced. — Lawson  v.  Black  Dia- 
mond Co.,  53  Wash.  614,  102  P.  759 ;  Glade  v.  Eastern  III.  Co., 
107  S.  W.  1002,  129  Mo.  App.  443. 

Disputing  Vendor's  Title. 

The  rule  that  a  vendee  can  not  dispute  his  vendor's  title  does 
not  apply  when  the  vendee  claims  that  he  was  induced  into 
the  contract  by  fraud. — Phoenix  v.  Bijelich,  95  P.  351,  30 
Nev.  257. 

Where  a  purchaser  is  put  in  possession  under  an  executory 
contract  of  sale  and  while  in  possession  buys  in  a  hostile  title 
to  an  undivided  interest,  he  holds  such  title  in  trust  for  his 
vendor.  He  can  not  remain  in  possession  and  decline  payment 
and  at  most  (if  this  hostile  title  was  the  better  title),  he  can 
only  claim  credit  for  the  price  paid  with  interest. — Garvey  v. 
La  Shells,  151  Cal.  526,  91  P.  498. 

Defect  of  title,  to  extent  of  undivided  1/48  no  defense  to 
vendee.— Brown  v.  Gordon  Tiger  Co.,  44  Colo.  311,  97  P.  1042. 

Default  After  Part  Payment. 

The  forfeiture  of  part  payment  as  liquidated  damages  has 
been  generally  upheld.— C7ar&  v.  American  Co.,  28  Mont.  468, 
72  P.  978 ;  Garcin  v.  Pennsylvania  Co.,  71  N.  E.  793,  186  Mass. 
405 ;  Spedden  v.  Sykes,  —  Wash.  — ,  98  P.  752;  Champion  Co. 
v.  Cliampion  Mines,  164  Cal.  205,  128  P.  315. 

WORKING  CONTRACT  SALE. 

- 

For  and  in  consideration  of  the  sum  of  $500  to  me  in  hand  paid  by 
Orrin  F.  Place,  the  receipt  whereof  is  hereby  acknowledged,  I,  Charles 
H.  Morris,  do  hereby  agree  to  place  said  Orrin  F.  Place  in  full  and  sole 


SALES  AND  OPTIONS.  349 

possession  and  control  of  the  Fair  Deceiver  Lode  Mining  Claim,  situate, 
etc.,  with  authority  to  work  and  prospect  the  same  as  he  sees  fit  for  the 
term  of  sixty  days  from  date,  provided  only,  that  such  work  be  done  in 
good  and  workmanlike  manner,  and  that  any  ore  taken  out  shall  be  sep- 
arated and  left  on  the  dump,  and  not  removed  during  the  lifetime  of  this 
contract.  And  at  any  time  within  said  period,  on  tender  to  me  of  the 
further  sum  of  $4,500,  I  agree  to  deliver  a  good  and  sufficient  warranty 
deed  to  the  said  Orrin  F.  Place,  his  heirs  and  assigns,  conveying  said 
above  described  premises  absolutely  and  clear  of  encumbrance. 

In  case  no  such  tender  is  made,  said  sum  of  $500  is  to  be  treated  as 
the  consideration  of  this  option  and  right  of  testing  and  to  be  and 
remain  my  property  as  liquidated  damages. 

In  case  my  title  is  found  defective  and  I  fail  to  make  it  good  and 
marketable  within  said  period,  I  agree  to  pay  said  Orrin  F.  Place  the 
cost  of  abstract  and  the  vendee's  attorney's  reasonable  charges  for 
examination  of  title,  and  to  refund  said  sum  of  $500,  and  to  repay  to 
him  all  his  expenditures  upon  the  property. 

The  ore  taken  out  during  said  period  is  to  be  the  property  of  the 
party  who  remains  or  becomes  the  owner  at  the  end  of  said  period  of 
sixty  days. 

Time  is  of  the  essence  of  this  contract  in  all  particulars. 

Witness  my  hand  and  seal  this  tenth  day  of  May,  A.  D.  1916. 

CHARLES  H.  MORRIS.     [SEAL.] 

In  consideration  of  the  delivery  to  me  of  the  above  option,  I  agree  to 
expend  at  least  $500  in  work  upon  the  above  described  property  within 
the  lifetime  of  said  option. 

Witness  my  hand  and  seal  the  date  above  written. 

ORRIN  F.  PLACE.     [SEAL.] 

A  vendor  can  not  re-enter  and  at  the  same  time  collect  the 
purchase  money  notes.  He  can  not  have  both  remedies. — Man- 
son  v.  Dayton,  153  F.  258. 

SALE   SUBJECT  TO  EXAMINATION   OF   TITLE. 

The  undersigned,  0.  K.  Gaymon,  of  Breclcenridge,  State  of  Colorado, 
hath  agreed  to  sell  to  Frank  M.  Taylor,  of  Denver,  in  said  State,  and 
said  FranTc  M.  Taylor  hath  agreed  to  buy  of  and  from  said  0.  K.  Gay- 
mon the  Corinne  Rowland  Lode  Mining  Claim,  situate  in  Gregory  Min- 
ing District,  Gilpin  County,  Colorado,  for  the  consideration  of  $18,000  to 
be  paid  within  six  months  from  date,  fee  simple  (or  good  possessory) 
title  to  be  delivered  and  warranted  clear  of  liens.  Title  subject  to 
approval  of  J.  W.  B.  Smith,  attorney  for  purchaser.  Co*!;  of  deeds  to  bo 
paid  by  vendor;  of  examination  of  title  by  purchaser  Vendor  to  deliver 


350  SALES  AND  OPTIONS. 

at  his  own  cost  certified  abstracts  of  title  within  ten  days  to  said  attor- 
ney. Deeds  to  pass  on  tender  of  the  sum  above  mentioned  within  the 
period  of  six  months  above  limited. 

If  no  tender  is  made  within  such  period  the  purchaser  shall  be  in 
default  unless  he  show  the  title  materially  defective,  or  a  prior  breach  of 
contract  by  vendor,  or  that  material  misrepresentations  as  to  the  mine  or 
mineral  have  been  made  to  him  by  the  vendor  or  by  parties  in  the  interest 
of  the  vendor,  and  thereupon  either  party  may  proceed  for  specific  per- 
formance or  for  damages  or  both  or  otherwise  as  he  may  be  advised. 

Witness  the  hands  and  seals  of  said  parties  this  24th  day  of  April, 
A.  D.  1916.  O.  K.  GAYMON.  [SEAL.] 

FRANK  M.  TAYLOR.     [SEAL.] 

The  right  to  examine  the  abstract  of  title  before  payment  is 
a  condition  precedent  in  the  nature  of  things. — Pennsylvania 
Co.  v.  Thomas,  204  Pa.  325,  54  Atl.  101. 

CONTRACT  TO  SELL  AND  TO  BUY. 

I,  William  N.  Vaile,  vendor,  hereby  agree  to  sell  to  Charles  S.  Thomas, 
and  I,  Charles  S.  Thomas,  purchaser,  agree  to  buy  of  said  William  N. 
Vaile,  the  Dream  Placer  Mining  Claim,  situate,  etc. 

The  agreed  consideration  of  said  sale  is  $1,000  cash  in  hand  paid,  the 
receipt  whereof  is  hereby  acknowledged;  $3,000  to  be  paid  within  sixty 
days  from  the  date  hereof,  and  $6,000  within  ninety  days  from  such  date, 
making  a  total  consideration  of  $10,000. 

Said  vendor  within  ten  days  from  date  will  deliver  to  purchaser,  or  his 
attorney,  an  abstract  of  title  duly  certified  by  the  clerk  and  recorder  of 
said  county,  or  by  some  reputable  abstract  office,  together  with  all  the 
original  title  papers  which  are  in  his  possession  or  within  his  power  to 
produce. 

And  within  said  time  will  place  in  escrow  in  the  National  TJanlc  of 
Commerce,  Denver,  a  good  and  sufficient  warranty  deed  conveying  to  said 
Charles  S.  Thomas,  or  such  person  as  he  shall  nominate,  the  said  premises 
clear  of  encumbrance,  to  be  by  such  bank  held  in  escrow  until  final  pay- 
ment be  made  under  this  contract  or  default  is  made  under  the  same. 
Deposit  in  said  bank  to  the  credit  of  vendor  shall  be  equivalent  to  pay- 
ment of  any  of  said  installments. 

Time  is  of  the  essence  of  this  contract  as  to  each  and  every  installment, 
and  if  any  installment  or  installments  be  not  paid  within  the  time  or 
times  hereby  limited  therefor,  all  previous  installments  shall  be  and 
remain  the  property  of  said  vendor,  the  deed  in  escrow  shall  be  returned 
to  him  for  cancellation,  and  the  property  shall  remain  his  own,  unaffected 
and  unencumbered  by  this  contract.  But  if  he  fail  to  deliver  abstract 
within  said  period,  or  to  deposit  said  deed  in  escrow,  or  if  his  title  prove 


SALES  AND  OPTIONS.  351 

encumbered  or  otherwise  not  marketable,  vendee  may  recover  any  and  all 
installments  paid,  or  may  sue  for  specific  performance  and  for  a  perfect 
title,  or  for  damages  or  otherwise  as  he  may  be  advised. 

Witness  the  hands  and  seals  of  said  parties  this  tenth  day  of  May, 
A.  D.  1916. 

WILLIAM  N.  VAILE.        [SEAL.] 
CHARLES  S.  THOMAS.     [SEAL.] 

A  better  because  a  fairer  contract  than  the  last  above  given, 
is  a  sale  by  deed,  securing  the  unpaid  installments  by  note  and 
mortgage. 

The  terms  of  sale  are  so  variant  and  the  temptations  to 
evade  become  so  great  with  the  fluctuations  in  value,  that  it  is 
always  preferable  to  state  the  bargain  fully  to  an  attorney 
jointly  agreed  on  and  whose  compensation  is  not  made  con- 
tingent on  the  sale,  and  to  have  him  place  the  bargain  in  such 
form  as  will  express,  without  fiction  or  verbiage,  the  real 
intention  of  the  parties. 

Lease  and  Option. 

Perhaps  the  most  usual  and  in  most  instances  the  preferable 
form  of  executory  sale  is  that  of  Lease  and  Option. 

After  end  of  paragraph  No.  11  in  the  form  of  lease  on  p.  360 
proceed  as  follows: 

THE   OPTION. 

And  in  consideration  of  the  acceptance  of  the  foregoing  lease  and  the 
expenditures  to  be  made  thereunder  and  the  well  and  faithful  keeping  of 
the  covenants  thereof,  the  said  lessee  shall  have  the  right  to  purchase  the 
said  demised  premises  by  payment  of  the  sum  of  ten  thousand  dollars 
on  or  before  the  first  day  of  May,  A.  D.  1916,  time  being  of  the  essence 
of  the  contract  as  to  such  payment.  And  upon  the  tender  of  such  pay- 
ment the  lessor  will  make,  execute,  acknowledge  and  deliver  at  his  own 
cost  and  charges,  good  and  sufficient  deed  or  deeds  of  warranty  to  be 
delivered  to  the  lessee  or  such  person  or  company  as  he  shall  nominate, 
conveying  the  said  premises  clear  of  incumbrance. 

The  forfeiture,  surrender  or  termination  of  the  above  lease  for  any 
cause  shall  render  this  option  void,  and  the  above  mentioned  payment  may 
not  thereafter  be  tendered. 

In  the  above  form  the  covenants  of  the  lease  make  a  valid 
consideration  for  the  option.  In  the  absence  of  a  clause  defeat- 


352  SALES  AND  OPTIONS. 

ing  the  option  on  forfeiture  of  the  lease  the  option  may  be 
enforced,  although  the  lease  has  been  forfeited. — Mathews  Co. 
v.  New  Empire  Co.,  122  F.  972. 

An  agreement  to  work  a  mine  is  good  consideration  for  a 
promise  to  sell  it. — Clarno  v.  Grayson,  30  Or.  Ill,  46  P.  426. 
It  follows  that  the  acceptance  of  a  working  lease  is  good  con- 
sideration for  an  option  on  the  same  property,  and  the  com- 
bination of  the  two  contracts  in  the  same  or  by  distinct  papers 
is  of  common  occurrence.  See  Form,  page  351. 

Escrow. 

Where  a  title  bond  or  other  executory  contract  is  delivered 
it  is  usually  accompanied  by  a  deed  executed  and  acknowl- 
edged and  placed  in  escrow.  An  escrow  amounts  to  a  deposit 
with  a  third  party  of  an  unrecorded  deed  to  be  delivered  on 
certain  conditions,  the  title  bond  or  other  executory  contract 
being  actually  delivered  and  held  in  the  meantime.  Such 
escrow  is  usually  in  the  shape  of  a  deed  enclosed  in  a  sealed 
envelope  and  endorsed  as  follows : 

To  WM.  B.  MORRISON,  CASHIER,  NATIONAL  BANK  OP  COMMERCE,  Den- 
ver: You  are  authorized  to  deliver  the  within  deed  to  Clarence  A.  Wood, 
his  agent,  or  order,  upon  payment  to  me,  or  deposit  to  my  order,  of  the 
sum  of  ten  thousand  dollars,  on  or  before  the  first  day  of  January,  A.  D. 
1916.  Meanwhile  you  will  hold  the  same  irrevocably.  If  payment  is  not 
made  on  or  before  said  date,  you  will  return  the  same  to  me  for 
cancellation.  LUTHER  M.  GODDARD. 

Sept.  30,  1915. 

An  escrow  is  often  placed  on  deposit  with  no  paper  other 
than  its  accompanying  letter  of  instructions.  And  the  agree- 
ment is  often  delivered  on  condition  of  its  not  going  on  record, 
the  vendor  objecting  to  clouding  the  title  by  recording  execu- 
tory agreements  which  will  perhaps  never  result  in  conveyance. 
Such  an  escrow  or  agreement  (not  recorded)  if  on  good  con- 
sideration, is  valid  in  all  respects,  except  that  of  giving  the  pur- 
chaser record  security. — Wolcott  v.  Johns,  1  Colo.  App.  361, 
44  P.  675. 


SALES  AND  OPTIONS.  353 

The  deed  relates  back  to  the  date  of  the  escrow  agreement 
as  to  all  who  ha.d  notice  of  the  escrow. — Whitmer  v.  Schenk, 
83  P.  775,  31  Ida.  702. 

Notice  of  withdrawal  to  the  escrow  holder  is  no  notice  to  the 
buyer,  nor  is  record  of  deed  to  a  third  party  having  knowl- 
edge of  the  escrow  notice  in  such  case. — Smith  v.  Russell,  20 
Colo.  App.  554,  80  P.  474. 

Where  an  escrow  deed  is  lifted  it  cuts  out  the  equities  of 
parties  buying  into  the  mine  with  notice  of  the  escrow;  but 
where  such  a  third  party  bought  the  land,  pending  the  escrow, 
it  did  not  excuse  the  escrow  grantee  from  tendering  the  money 
for  the  deed.— Whitmer  v.  Schtnk,  11  Ida.  702,  83  P.  775. 

After  tender  of  performance  by  the  vendee,  an  option 
becomes  a  contract  which  may  be  specifically  enforced.  And 
the  vendor  is  estopped  to  prove  the  consideration  was  not  paid 
as  against  a  bona  fide  assignee. — Hoogendorn  v.  Daniel,  178  P. 
765,  102  C.  C.  A.  213. 

There  must  be  performance  of  the  conditions  of  the  escrow 
or  good  legal  excuse  for  non-performance. — World's  Fair  Co. 
v.  Poivers,  224  U.  S.  173,  56  L.  Ed.  717,  32  Sup.  Ct.  453. 

Acknowledgments  to  Contracts. 

No  instrument  needs  acknowledgment  except  such  as  is 
intended  to  be  placed  of  record ;  if  an  instrument  is  recorded 
without  acknowledgment,  it  may  be  valid  as  notice,  but  the 
original  must  be  produced  or  accounted  for  when  used  in  evi- 
dence— a  certified  copy  is  not  evidence.  An  acknowledgment 
is  not  a  part  of  the  instrument,  but  supplies  a  mode  of  proving 
its  execution  without  witnesses  and  for  obtaining  a  valid  copy 
when  lost  or  mislaid. 

Specific  Performance. 

When  the  contract,  in  whatever  form,  is  based  on  sufficient 
consideration  and  is  definite  in  its  terms  and  not  unilateral, 
and  the  vendee  has  not  been  guilty  of  laches,  and  has  paid  or 
performed  or  offered  to  pay-  or  perform  all  that  is  required 


354  SALES  AND  OPTIONS. 

of  him,  and  the  remedy  at  law  by  suit  for  damages  is  inade- 
quate, specific  performance  of  a  contract  for  the  sale  or  leasing 
of  a  mine  may  be  enforced  the  same  as  a  contract  for  the  sale 
of  any  other  class  of  real  property. — Zelleken  v.  Lynch,  80 
Kan.  746,  46  L.  R.  A.  (N.  S.)  659,  104  P.  563;  Hexter  v. 
Pearce,  L.  E.  1  Ch.  341  (1900) ;  Maryland  Clay  Co.  v.  Simp- 
ers, 53  Atl.  424,  96  Md.  I;  McClurg  v.  Crawford,  209  F.  340, 
126  C.  C.  A.  266. 

In  an  option  for  sale  of  a  mine  time  is  of  the  essence  of  the 
contract  and  tender  must  be  made  before  the  right  to  specific 
performance  arises. — Wheeling  Co.  v.  Elder,  170  F.  215. 

Specific  performance  will  not  be  denied,  because  a  survey 
shows  that  there  was  much  more  mineral  than  the  vendor  had 
estimated,  where  the  vendor  had  full  opportunity  to  know 
what  he  was  selling. — Bradley  v.  Hey  ward,  164  F.  107 ;  H  ey- 
ward  v.  Bradley,  179  F.  325,  102  C.  C.  A.  509.  Refused  where 
consideration  not  adequate. — Hobbs  v.  Davis,  168  Cal.  556, 
143  P.  733. 

Specific  performance  of  contract  for  sale  of  stock  will  be 
granted  only  in  exceptional  cases  which  are  stated  in  Eckley  v. 
Daniel,  193  F.  279. 

The  Courts  of  one  state  will  not  decree  specific  performance 
of  an  agreement  for  an  oil  lease  in  another  State. — Wilhite  v. 
Skelton,  5  Ind.  fer.  621,  82  S.  W.  932.  On  the  other  hand,  it 
has  been  ruled  that  a  suit  to  enforce  a  pipe  line  contract  may 
be  entertained  by  any  court  of  general  jurisdiction  which 
secures  service  on  the  person. — Texas  Co.  v.  Central  Fuel  Oil 
Co.,  194  F.  1, 114  C.  C.  A.  21. 

Armstrong  v.  Maryland  Coal  Co.  is  a  full  case  upon  many 
of  the  points  likely  to  arise  in  suit  against  vendor  for  specific 
performance.  It  also  specifies  the  covenants  which  a  buyer 
can  not  insist  upon  in  demanding  deed  of  coal  lands. — 67  W. 
Va.  589,  69  S.  E.  195. 

Where  a  legal  promise  of  a  lease  has  been  violated  the 
intended  lessee  may  waive  his  right  to  specific  performance 
and  sue  for  damages. — Rains  v.  Schermerhorn,  86  Kan.  854, 
122  P.  883,  87  Kan.  801,  126  P.  1085. 


PEAUD.  355 

FRAUD. 


The  general  rule  is  that  a  contract  or  document  procured 
by  fraud  is  not  void,  but  only  voidable  at  the  suit  of  the  party 
injured.— McKnight  v.  El  Paso  Co.,  16  N.  M.  721,  Ann.  Gas. 
1912D,  1309,  120  P.  694. 

Where  a  sale  has  been  induced  by  fraud  the  injured  party 
may  either  rescind  or  sue  for  damages. — Byard  v.  Holmes,  33 
N.  J.  L.  119,  6  M.  R.  598;  Smith  v.  Bolles,  16  M.  R.  159,  132 
U.  S.  125,  33  L.  Ed.  279,  10  Sup.  Ct.  39. 

If  he  do  neither,  but  continue  to  exercise  acts  of  ownership 
over  the  property  purchased,  he  may  be  estopped  even  to 
plead  the  false  representations  to  an  action  on  the  contract. — 
Butler  v.  Rockwell,  14  Colo.  125,  126,  23  P.  462;  Gordon  Tiger 
Co.  v.  Brown,  56  Colo.  301, 138  P.  51. 

Proof  is  admissible  that  defendant  had  attempted  to  salt 
the  same  mine  on  other  persons. — Mudsill  Co.  v.  Watrous,  61 
F.  163,  9  C.  C.  A.  415,  18  M.  R.  1.  Sale  of  worthless  stock 
may  be  set  aside  on  like  principles  as  the  sale  of  the  mine. — 
Ormsly  v.  Budd,  72  Iowa  80,  33  N.  W.  457.  False  representa- 
tions made  by  officer  are  not  necessarily  chargeable  to  the  com- 
pany.— Watson  Co.  v.  James,  72  Iowa  184,  33  N.  W.  622.  A 
party  is  bound  where  he  assumes  to  know  and  makes  assertions 
accordingly.— Lehigh  Co.  v.  Bamfor.d,  150  U.  S.  665,  37  L.  Ed. 
1215,  14  Sup.  Ct.  219 ;  King  v.  Lamborn,  186  F.  21,  108  C.  C. 
A.  123. 

A  party  can  not  cover  up  a  fraud  by  using  his  wife's  name. 
—Largey  v.  Bartlett,  18  Mont.  265,  44  P.  962. 

The  right  to  set  aside  a  sale  for  fraud  does  not  survive  > 
against  executors. — Stratton's  Ind.  v.  Dines,  126  F.  9685  135 
F.  449,  68  C.  C.  A.  161.  Where  an  agent  buys  a  mine  for  less 
than  he  reports  to  his  principal  he  is  liable  for  the  difference 
to  his  principal  in  assumpsit. — Humbird  v.  Davis,  59  Atl. 
1082,  210  Pa.  311. 

And  between  associates  none  can  secure  a  secret  profit  on 
the  sale.  Recovery  in  such  case  does  not  depend  on  proof  of 
actual  fraud.— Sun  Dance  Co.  v.  Frost,  7  Ariz.  289,  64  P.  435, 


356  FRAUD. 

21  M.  R.  252 ;  Upton  v.  Weisling,  8  Ariz.  298,  71  P.  917,  22  M. 
R.  601 ;  Christy  v.  Campbell,  36  Colo.  261,  87  P.  548;  Dreeland 
v.  Pascoe,  102  P.  331,  39  Mont.  290. 

A  purchaser  is  not  chargeable  with  notice  of  his  vendor's 
fraud  in  his  original  purchase. — Kendrick  v.  Colyar,  143  Ala. 
597,  42  So.  110.  A  party  who  by  his  own  conduct  prevents 
the  completion  of  an  act  of  appropriation  can  take  no  advant- 
age of  his  own  wrong. — De  Wolf  skill  v.  Smith,  5  Cal.  App 
175,  89  P.  1001. 

An  agent  employed  to  buy  a  mine  for  $150,000  got  it  for 
much  less  than  he  reported  to  his  principal.  A  judgment  for 
the  amount  of  his  secret  rebate  was  upheld,  and  the  fact  that 
plaintiff  consummated  the  purchase  was  no  bar  to  his  action 
for  damages. — Great  Western  Co.  v.  Chambers,  155  Cal.  364, 
101  P.  6. 

Where  parties  to  a  mining  sale  collude  to  deceive  a  pur- 
chaser, both  the  party  who  takes  title  and  the  party  for  whom 
he  holds  it  and  the  property  itself  become  liable  and  charged 
with  a  constructive  trust. — Cunningham  v.  Pettigrew,  169  F. 
335,  94  C.  C.  A.  457. 

Pretending  to  become  himself  a  purchaser  of  mining  stock 
and  giving  check  to  pay  for  same  and  so  inducing  defendant 
to  purchase  also  when  the  check  was  only  a  blind  and  was 
returned  to  the  maker,  Held,  good  to  rescind  the  sale. — Seaver 
v.  Snider,  21  Colo.  App.  431,  122  P.  402.  Fake  check  and 
salted  samples. — Springhetti  v.  Hahneivald,  54  Colo.  383,  131 
P.  266. 

Purchaser  of  stock  sued  her  broker  for  stock  purchased  on 
extravagant  representations  and  alleged  guarantee.  Evidence 
and  measure  of  damages  in  such  case  stated. — Buttock  v. 
Lewis,  22  Colo.  App.  449,  125  P.  849. 

Distinction  Between  Opinions  and  Facts. 

Assertions  of  value  are  as  a  rule  only  expressions  of  opin- 
ions. But  otherwise  as  to  statements  that  the  lands  sold 
include  a  certain  ore  bed. — Chatham  Co.  v.  Moffatt,  16  M.  R. 
103,  147  Mass.  403,  9  Am.  St.  Rep.  727,  18  N.  E.  168.  And 


MIMING  LEASE.  357 

opinions  and  promises  (false  averments  of  large  means  and 
extensive  operations  intended)  may  amount  to  actual  fraud. — 
Rarer  Co.  v.  Trout,  83  Va.  397,  5  Am.  St.  Rep.  285,  2  S.  E.  713. 
The  same  as  to  promises  never  intended  to  be  performed. — 
Laivrence  v.  Gayetty,  78  Cal.  126,  12  Am.  St.  Kep.  29,  20  P. 
382,  17  M.  R.  169. 

The  false  representation  of  the  amount  of  mineral  in  place, 
and  as  well  the  false  representation  that  an  expert  had 
reported  50,000  tons  in  place  when  he  had  only  reported  5000 
tons,  are  material  to  set  aside  a  sale. — Johnson  v.  Withers,  98 
P.  42,  9  Cal.  App.  52. 

A  statement  that  certain  mining  stock  was  of  great  value 
and  would  pay  immense  dividends  is  only  expression  of  opin- 
ion.— Wegerer  v.  Jordan,  10  Cal.  App.  362,  101  P.  1066.  But 
overstating  purchase  price  may  be  fraud. — Rich  v.  Teasley, 
194  F.  534. 

Representations  Not  Relied  On. 

Where  a  party  buys  a  mine  after  examination,  or  after  full 
opportunity  to  examine,  or  where  he  has  tested  and  prospected 
a  claim,  or  buys  upon  the  report  of  his  own  expert,  false  rep- 
resentations, as  a  general  rule,  become  immaterial. — Fidelity 
Co.  v.  Bank,  139  F.  101,  71  C.  C.  A.  299 ;  Winter  v.  Bostwick, 
172  F.  285;  Mitchell  M.  Co.  v.  Eammons,  12  Ariz.  300,  100  P. 
795 ;  Dooley  v.  Burlington  Co.,  12  Ariz.  332,  lOO^P.  797 ;  Ernest 
v.  McCauley,  155  Cal.  739,  102  P.  924;  King  v.  Lamborn,  186 
F.  21,  108  C.  C.  A.  123. 

"'/"  

MINING  LEASE. 


Written  or  Verbal. 

The  lease  if  for  more  than  one  year  must  be  in  writing  to 
avoid  the  Statute  of  Frauds.  (R.  S.  Sec.  2662.)  If  for  a  less 
period  it  is  still  often  reduced  to  writing,  and  the  covenants 
being  peculiar  can  not  be  too  particularly  expressed.  The 
actual  possession  taken  by  the  lessee  being  notice  of  his  rights, 
the  lease  generally  is  neither  acknowledged  nor  recorded. 


358  MINING  LEASE. 

Utider  an  ordinary  surface  lease  at  a  fixed  rent  the  tenant 
has  no  right  to  sink  an  oil  well. — Isom  v.  Bex  Oil  Co.,  147  Cal. 
659,  82  P.  317. 

A  writing  in  the  form  of  a  deed,  but  reserving  rent,  is  in 
legal  effect  a  lease.— Tooth  man  v.  Courtney,  62  W.  Va.  167,  58 
S.  E.  915.  Lease  may  be  good  without  the  signature  of  the 
lessee.— Chandler  v.  Hart,  161  Cal.  405,  Ann.  Cas.  1913B, 
1094,  119  P.  516. 

There  are  cases  making  refined  distinction  between  a  lease 
proper  and  a  sale  of  the  mineral  in  place.  They  may  involve 
tax  questions  and  occur  only  in  long  leases  treating  the  con- 
tract as  a  sale  of  the  coal  or  mineral  and  not  as  an  agreement 
to  work  it  out  on  a  royalty. — Delaware  Co.  v.  Sanderson,  109 
Pa.  583,  58  Am.  Rep.  743,  1  Atl.  394;  Browning  v.  Bosicell, 
215  F.  826,  132  C.  C.  A.  168. 

Where  lessees  continue  to  work  for  years  after  the  termina- 
tion of  the  lease  they  are  considered  to  be  working  the  same 
as  if  the  lease  had  been  renewed. — Wallace  v.  Dorris,  218  Pa. 
534,  67  Atl.  858. 

Set  Work. 

In  large  mines  worked  on  the  tribute  system,  the  lease  is 
usually  verbal  between  the  manager  and  the  miner,  and  is 
more  in  the  nature  of  a  contract  of  hiring,  the  foreman  retain- 
ing general  control  of  the  work. 

Dead  Work. 

The  following  form  is  correct  to  the  extent  of  the  usual 
covenants,  but  there  are  often  special  covenants  added  in 
regard  to  "dead  work"  and  other  matters.  Dead  work  is  a 
term  of  the  popular  language,  and  means  sinking  shafts  and 
running  drifts,  adits  or  cross-cuts,  or  it  may  embrace  every- 
thing except  stoping  and  the  timbering  incidental  to  stoping. 
Its  meaning  being  so  general  it  should  not  be  used  at  all  in  the 
instrument  and  the  intention  should  be  covered  by  more  exact 
expressions. 


MINING  LEASE.  359 

It  is  a  common  stipulation  to  require  no  royalty  for  ore 
extracted  in  sinking  or  in  driving  levels.  Where  dead  work  is 
to  be  paid  for,  care  should  be  taken  to  express  whether  the 
compensation  is  to  come  "out  of  the  first  mill  returns"  or  "out 
of  the  royalty."  In  the  latter  case  the  lessor  pays  for  all  of  it. 
In  the  former  he  pays  a  share  equivalent  to  his  proportion  of 
the  proceeds. 

The  Royalty  Reserved  Necessarily  Varies,  20  or  25  Per  Cent 

being  the  usual  amount,  and  5  and  75  per  cent  being  extreme 
limits. 

.  FOBM  OF  LODE  LEASE. 

THIS  INDENTURE,  made  this  -first  day  of  May,  in  the  year  of  our  Lord 
one  thousand  nine  hundred  and  sixteen,  between  Harvey  C.  Vernon  of 
Chicago,  State  of  Illinois,  lessor,  and  Franlc  H.  Stanwood,  of  Salina,  State 
of  Colorado,  lessee  or  tenant :  Witnesseth,  that  the  said  lessor,  for  and  in 
consideration  of  the  royalties  hereinafter  reserved  and  the  covenants  and 
agreements  hereinafter  expressed,  and  by  the  said  lessee  to  be  kept  and 
performed,  hath  granted,  demised,  and  let  and  by  these  presents  doth 
grant,  demise  and  let  unto  the  said  lessee  all  the  following  described  mine 
and  mining  property,  situate  in  Four  Mile  Mining  District,  County  of 
Boutt,  State  of  Colorado,  to-wit:  The  Owl  Bird  Lode  Mining  Claim, 
Survey  Lot  No.  172,  together  with  the  appurtenances. 

To  have  and  to  hold  unto  the  said  lessee,  for  the  term  of  one  year 
from  date  hereof,  expiring  at  noon  on  the  first  day  of  May,  1917,  unless 
sooner  forfeited  or  determined  through  the  violation  of  any  covenant 
hereinafter  against  the  said  tenant  reserved. 

And  in  consideration  of  such  demise,  the  said  lessee  doth  covenant  and 
agree  with  said  lessor  as  follows,  to  wit: 

1.  To  enter  upon  said  mine,  or  premises,  and  work  the  same  mine  fash- 
ion, in  manner  necessary  to  good  and  economical  mining,  so  as  to  take 
out  the  greatest  amount  of  ore  possible,  with  due  regard  to  the  develop- 
ment and  preservation  of  the  same  as  a  workable  mine,  and  to  the  special 
covenants  hereinafter  reserved. 

2.  To  work  and  mine  said  premises  as  aforesaid  steadily  and  continu- 
ously, from  the  date  of  this  lease  with  at  least  two  persons  employed 
underground,  for  at  least  twenty  shifts  to  the  man  each  calendar  month. 

3.  To  well  and  sufficiently  timber  said  mine  at  all  points  where  proper, 
in  accordance  with  good  mining;  and  to  repair  all  old  timbering  wherever 
it  may  become  necessary. 


360  MINING  LEASE. 

4.  To  allow  said  lessor  and  his  agents  from  time  to  time,  to  enter  upon 
and  into  all  parts  of  said  mine  for  purposes  of  inspection. 

5.  To  not  assign  this  lease  or  any  interest  thereunder,  and  to  not  sub- 
let the  said  premises  or  any  part  thereof,  without  the  written  assent  of 
said  lessor,  and  to  not  allow  any  person  not  in  privity  with  the  parties 
hereto,  to  take  or  hold  possession  of  said  premises,  or  any  part  thereof, 
under  any  pretense  whatever. 

6.  To   occupy  and  hold  all  cross   or  parallel  lodes,   spurs   or  mineral 
deposits  of  any  kind  which  may  be  discovered  by  the  said  lessee,  or  any 
person  under  him,  in  any  manner,  by  working  within,  or  from  the  demised 
ground,  as  the  property  of  said  lessor  with  privilege  to  said  lessee  of 
working  the  same  as  parcel  of  said  demised  premises. 

7.  To  keep  at  all  times  the  drifts,  shafts,  tunnels  and  other  workings 
thoroughly  drained  and  clear  of  loose  rock  and  rubbish,  unless  prevented 
by  extraordinary  mining  casualty. 

8.  To  do  no  underhand  stoping,  and  to  make  all  shafts  7  feet  long  by 
4  feet  wide  in  the  clear,  and  all  drifts  6  feet  high  by  4  feet  wide  in 
the  clear. 

9.  To  pay  to  said  lessor  as  royalty  25  per  cent  of  the  net  mill  returns 
of  all  ore  to  be  extracted  from  said  premises  by  delivery  of  such  ore 
with  all  convenient  speed  in  lots  as  mined  to  some  mill  or  regular  ore 
buyer  in  Denver  or  Pueblo,  and  leaving  with  such  mill  or  ore  buyer  the 
percentage  of  mill  returns  aforesaid  for  delivery  to  the  lessor.     (See 
clause  9,  Covenant  for  Graded  Royalty,  or  Royalty  on  Price  Per  Ton.) 

10.  To  deliver  to  said  lessor  the  said  premises  with  the  appurtenances, 
and   all   improvements   in    good   order   and    condition,    with   all    drifts, 
shafts,  tunnels  and  other  passages  thoroughly  clear  of  loose  rock  and 
rubbish,  and  drained,  and  the  mine  ready  for  immediate  continued  work- 
ing (accident  not  arising  from  negligence  alone  excusing)  without  demand 
or  further  notice,  on  the  said  1st  day  of  May,  A.  D.  1917,  at  noon,  or  at 
any  time  previous,  upon  demand  for  forfeiture. 

11.  And  finally,  that  upon  violation  of  any  covenant  or  covenants  here- 
inbefore reserved,  the  term  of  this  lease  shall,  at  the  option  of  the  saiii 
lessor,  expire,  and  the  same  and  said  premises,  with  the  appurtenances, 
shall  become  forfeit  to  said  lessor;  and  said  lessor  or  his  agent  may 
thereupon,  after  demand  of  possession  in  writing,  enter  upon  said  premises 
and  dispossess  all  persons  occupying  the  same,  with  or  without  force  and 
with  or  without  process  of  law;  or  at  the  option  of  said  lessor  the  said 
tenant  and  all  persons  found  in  occupation  may  be  proceeded  against  as 
guilty  of  unlawful  detainer.  (Here  insert  option,  p.  SSI.) 

Each  and  every  clause  and  covenant  of  this  Indenture  shall  extend  to 
the  heirs,  executors,  administrators  and  lawful  assigns  of  all  parties 
hereto. 


MINING  LEASE.  361 

In  witness  whereof,  the  said  parties  have  hereunto  set  their  hands 
and  seals. 

HARVEY  C.  VERNON.          [SEAL.] 
FRANK  H.  STANWOOD.       [SEAL.] 
(For  acknowledgment,  if  desired,  see  p.  332.) 

Special  Covenants. 

Where  the  law  allows  a  lien  in  favor  of  lessee's  employees, 
unless  notice  is  posted,  there  should  be  a  special  covenant  to 
keep  such  notice  posted. 

Where  a  large  product  is  expected  it  is  usual  to  require 
lessee  to  make  a  monthly  report  of  his  pay  roll  and  mill 
returns,  and  unusual  conditions  may  suggest  many  other 
special  covenants,  particularly  in  coal  leases,  but  as  a  rule  the 
more  simple  the  lease  the  better  for  both  sides. 

The  covenant  to  not  assign  is  often  omitted,  especially 
where  an  option  goes  with  the  lease. 

It  is  not  unusual  to  insert  a  covenant  releasing  obligation 
to  work  in  case  of  labor  strikes.  In  this  connection  see  Hitch- 
man  Co.  v.  Mitchell,  where  the  United  Mine  Workers  of  Amer- 
ica were  enjoined. — 202  F.  512. 

Covenant  for  Graded  Royalty. 

9.  To  pay  to  said  lessor  as  royalty  10  per  cent  of  the  net  mill  returns 
of  all  ore  to  be  extracted  from  said  premises  running  30  ounces  of  silver 
or  under  to  the  ton ;  20  per  cent  on  ore  running  over  30  and  not  exceeding 
50  ounces  to  the  ton;  30  per  cent  on  all  ore  running  over  50  ounces — by 
delivering  all  the  ore  in  lots  as  mined  to  some  mill  or  to  some  regular  ore 
buyer  in  Denver  or  Pueblo  and  leaving  with  such  mill  or  ore  buyer  the 
several  percentages  of  mill  returns  as  aforesaid  for  delivery  to  lessor. 

Estimate  of  royalty  after  deducting  freight  and  mill  charges 
is  said  to  be  based  on  the  "net"  mill  returns.  Where  the  roy- 
alty is  much  graded  and  made  dependent  on  the  amount  oi* 
lead  or  copper,  as  well  as  silver  or  gold,  the  more  simple  form 
is  to  reserve  it  on  the  "price  per  ton"  paid  by  the  ore  buyer, 
which  is  90  to  95  per  cent  of  the  bullion  and  base  metal  value, 
after  deducting  treatment  charges;  but  in  the  "price  per  ton" 
the  freight  has  not  been  estimated. 


362  MINING  LEASE. 

Royalty  on  Price  Per  Ton. 

9.  To  pay  to  said  lessor  as  royalty  10  per  cent  of  the  net  mill  returns 
of  oil  ore  sold  for  $20  per  ton  or  less,  net  price  after  deducting  freight 
and  mill  charges,  and  20  per  cent  of  the  like  net  mill  returns  of  all  ore 
sold  for  more  than  $20  per  ton  net  price  as  aforesaid  by  delivering  all  the 
ore  in  lots  as  mined  to  some  mill  or  to  some  regular  ore  buyer  in  Denver 
or  Pueblo,  and  leaving  with  such  mill  or  ore  buyer  the  several  percentages 
aforesaid  for  delivery  to  the  lessor. 

Net  mill  returns  are  the  sums  paid  for  the  values  in  the  ore 
after  deducting  all  charges  for  carriage  in  any  form,  assays 
and  mill  charges. 

Freight  is  paid  on  the  gross  weight  and  the  ore  paid  for  on 
the  net  weight. 

The  mill  returns,  upon  which  settlement  between  lessor  and 
lessee  is  made,  are  substantially  according  to  the  form  on 
following  page. 

PLACER  LEASE. 

Follow  the  form  for  Lode  Lease  except  in  the  description 
and  the  numbered  covenants,  which  may  be  as  follows: 

Description. 

The  Yellow  Bug  Placer  Mining  Claim,  Survey  Lot  No.  88,  and  300 
inches  of  water  in  the  Arapahoe  ditch. 

Covenants. 

1.  To  enter  upon  said  mine  or  premises  and  worlc  the  same  so  as  to 
take  out  the  greatest  possible  amount  of  gold  with  due  regard  to  the 
development  and  preservation  of  the  unwashed  ground  for  future  con- 
tinued working  and  to  the  special  covenants  hereinafter  reserved. 

2.  To  work  and  wash  said  premises  steadily  and  continuously  from  the 
date  of  this  lease  with  a  force  of  at  least  two  men  and  with  as  much  of 
said  water  as  can  be  obtained  and  used.    Cessation  of  work  for  the  total 
number  of  three  secular  days  in  any  one  calendar  month  shall  be  con- 
sidered a  violation  of  this  covenant.    But  no  work  shall  be  required  while 
the  ground  is  frozen. 

3.  To   take  care  of  the  dump  and  tailings  so  as  to   prevent   their 
accumulation  upon  any  ground  of  the  lessor  remaining  unworked. 

4  and  5.    (Same  as  lode  lease.) 


M1M.XG   LEASE. 


363 


CD  > 
V)     Crt 


*  O 

IS 


X 

SAMPLER 
LOT  No. 

1 

|i 

s 

1 

If 

WEIGHTS 

. 

§'n 

i  I! 

I 

NET 

POUNDS 

Si-*? 
<  „ 

ANALYSJS 

* 

1* 

* 

1* 

t   1?* 

8     i£* 

?      |«» 

*     ** 

? 

1 

r        r        r        r 
2         2         2         2     S 

CA                        0»                        •                      •            9 

M                H                Cfl               'fl         <* 

Iff 

f  I  1  f  -s 

III 

If"    - 

*r!f 

S 

l?i 

| 

III 

»  b??° 

S      |°  "  •*  Et 

ssbsssbs   s 

AMOUNT 
RECEIVED 

W 

> 

CO 

h3 
W 
55 

CO 

> 

§ 


O 

o 

o 


364  MINING  LEASE. 

6.  To  clean  up  the  gold  not  oftener  than  once  every  two  weeks  and  at 
least  as  often  as  once  in  four  weeks  and  to  give  48  hours'  notice  to  lessor 
of  the  date  intended  for  clean  up,  and  at  each  clean  up  lessor  shall  have 
the  right  to  be  personally  present  or  to  send  some  one  person  to  represent 
him  and  be  present  and  assist  at  such  clean  up  and  at  the  retorting  of 
the  amalgam  and  the  weighing  of  the  retort,  and  to  make  no  clean  up, 
partial  or  general,  without  giving  such  notice. 

7.  To  pay  as  royalty  to  the  lessor  25  per  cent  of  the  gross  proceeds 
of  working  under  this  lease  by  delivery  immediately  after  each  clean  up  (*) 
of  the  whole  of  the  retort  to  the  lessor  or  to  his  agent  present  on  the 
ground,  and  the  said  lessor  covenants  forthwith  to  cause  the  same  to  be 
shipped  to  the  mint  at  Denver  or  to  some  regular  gold  buyer  at  Fairplay 
or  Denver  and  to  return  to  lessee  75  per  cent  of  the  net  proceeds. 

8.  To  deliver  to  said  lessor  the  said  premises  with  the  appurtenances  in 
good  order  and  condition  and  the  ground  and  water  ready  for  immediate 
continued  use  and  working  without  demand  or  notice  on  said  first  day  of 
May,  A.  D.  1917,  or  at  any  time  previous  upon  demand  for  forfeiture. 

Second  Form  of  Royalty  Covenant. 

After  the  (*)  proceed  as  follows: 

To  the  lessor  or  to  his  agent  present  on  the  ground,  of  one-quarter  by 
weight  of  the  amalgam  or  of  the  retort  as  he  may  elect. 


Third  Form  of  Royalty  Covenant. 

After  the  (*)  proceed  as  follows: 

Of  25  per  cent  of  the  net  mint  returns  or  proceeds  of  sale  to  some 
regular  gold  buyer  at  Fairplay  or  Denver  for  use  of  the  lessor. 

Covenant  to  Work. 

Where  royalty  is  reserved  in  the  usual  form  there  is  an 
implied  covenant  to  keep  at  work. — Rorer  Co.  v.  Trout,  83  Va. 
397,  5  Am.  St.  Rep.  285,  2  S.  E.  713;  Aye  v.  Philadelphia  Co., 
193  Pa.  451,  74  Am.  St.  Rep.  696,  20  M.  R.  177,  44  Atl.  555. 
Otherwise  where  there  is  a  fixed  rent,  or  a  rent  based  on  an 
assumed  minimum  production. — Mclntyre  v.  Mclntyre  Co.,  11 
N.  E.  645,  105  N.  Y.  264. 

The  ordinary  covenant  to  "take  out  the  greatest  amount  of 
ore  possible"  is  enforceable  as  such  and  is  not  a  mere  condi- 


Mils  IMG  LEASE.  365 

lion.  The  measure  of  damages  in  such  case  would  depend 
on  the  amount  of  ore  that  could  have  been  mined  with  reason- 
able diligence.— Macon  v.  Trowbridge,  38  Colo.  330,  87  P. 
1147. 

Dredge  company  held  for  royalties  on  ground  worked  and 
for  gravel  which  it  should  have  worked. — Northern  Light  M. 
Co.  v.  Blue  Goose  Co.,  25  Cal.  App.  282, 143  P.  540. 

And  for  failure  to  commence  work  in  a  reasonable  time  the 
lease  may  be  cancelled. — Mclntosh  v.  Robb,  4  Cal.  App.  484, 
88  P.  517. 

For  breach  of  covenant  the  lessor  may  elect  between  for- 
feiture and  damages.— Brooks  v.  Gaffin,  90  S.  W.  808,  192  Mo. 
228. 

An  agreement  to  work  is  not  necessarily  an  agreement,  to 
work  continuously. — Caley  v.  Portland,  12  Colo.  App.  397,  56 
P.  350.  But  the  case  of  Zelleken  v.  Lynch  holds  that  the 
phrase  means  to  work  to  the  end  of  the  term. — 80  Kan.  746, 
46  L.  R.  A.  (N.  S.)  659,  104  P.  563. 

Failure  to  start  work  is  same  as  quitting. — Woodward  v. 
Mitchell,  140  Ind.  406,  39  N.  E.  437,  439,  18  M.  R.  158.  A 
parol  agreement  as  to  what  shall  be  considered  sufficient  work 
is  binding  on  lessor  and  his  grantees. — Bartley  v.  Phillips,  36 
Atl.  217,  18  M.  R.  542,  179  Pa.  175. 

To  recover  substantial  damages  against  a  lessee  failing  to 
work,  the  plaintiff  must  show  that  the  ore  could  have  been 
mined  to  a  profit. — Colorado  F.  Co.  v.  Pryor,  25  Colo.  540,  57 
P.  51,  19  M.  R.  544. 

Construction  of  long,  formal,  coal  mine  lease  as  to  right  to 
replace  machinery  and  fixtures,  change  plan  of  approaches, 
abandon  old  workings,  etc. — Junction  M.  Co.  v.  Springfield  J. 
Co.,  78  N.  E.  902,  222  111.  600. 

A  lessee  is  not  bound  under  covenant  to  return  in  as  good 
condition  as  when  received,  to  restore  buildings  accidentally 
destroyed  by  fire. — Id. 


366  MINING  LEASE. 

Exhausted  Mine — Faults. 

There  are  many  cases  which  hold  that  breach  of  covenant  to 
work,  or  to  pay  a  minimum  rent,  is  excused  when  the  ore  in 
the  mine  becomes  exhausted. — Brooks  v.  Cook,  135  Ala.  219, 

34  So.  960,  22  M.  R.  456 ;  Wilson  v.  Big  Joe  Co.,  134  Iowa  594, 
112  N.  W.  89;  Ross  v.  Savage,  66  Fla.  106,  108,  63  So.  148. 
Or  when  the  lessee  fails  to  find  any  ore. — Girton  v.  Daniels, 

35  Nev.  438, 129  P.  555. 

A  lessee  bound  to  take  out  all  the  coal  under  the  demised 
tract  is  not  bound  to  take  out  coal  which  could  not  be  taken 
out  at  a  profit.— Wilson  v.  Big  Joe  Co.,  134  Iowa  594,  112  N. 
W.  89.  Troxell  v.  Anderson  C.  Co.,  62  Atl.  1083,  213  Pa.  475, 
and  Wilson  v.  Big  Joe  Co.,  112  N.  W.  89,  134  Iowa  594,  are 
cases  in  which  lessees  of  coal  mines  sought  relief  against  rents 
on  account  of  encountering  faults.  In  the  first  cited  case 
relief  was  denied  on  the  assumption  that  lessee  had  no  right 
to  open  the  ground  by  instroke. 

Whether  the  lessees  worked  "mine  fashion"  as  required  by 
the  terms  of  the  lease  is  a  jury  question,  but  the  Court  con- 
strued the  covenant  "to  get  all  pay  dirt  as  low  as  2  cents  per 
pah"  not  to  mean  all  pay  dirt  of  that  value  in  the  mine  but 
only  such  as  it  would  pay  to  get  by  the  use  of  miner-like 
methods.— Belsea  v.  Tindall,  190  F.  440,  111  C.  C.  A.  244. 

The  plea  of  "exhausted  mine"  is  for  the  defending  lessee 
to  allege  and  make  good. — Martin  v.  Walsenburg  Co.,  200  F. 
270. 

Instroke. 

This  term  covers  the  right  to  work  one  mine  through 
another.  It  is  of  importance  in  many  colliery  cases  and  is 
becoming  so  in  deep  lode  mining.  Instroke  is  defined  and 
fully  considered  in  MacSwinney  on  Mines,  p.  230.  It  will  be 
allowed  to  lessee  unless  his  papers  covenant  against  it. — 
Schobert  v.  Pittsburg  Coal  Co.,  254  111.  474,  Ann.  Cas.  1913B, 
1104,  40  L.  R.  A.  (N.  S.)  826,  98  N.  E.  945. 

But  trespass  by  instroke  will  be  enjoined. — Truf'ees  v. 
Lehigh  Valley  Co.,  236  Pa.  350t  41  L.  R.  A.  (N.  S.)  M39,  84 


MINING  LEASE.  367 

Atl.  820.  And  the  lease  may  be  so  worded  as  to  cut  out  the 
instroke  right.— Sharum  v..  Whitehead  Co.,  223  F.  282.  See 
Bagley  v.  Republic  Co.,  193  Ala.  219. 

Right  to  Quit. 

Under  the  covenant  to  work  in  the  above  forms,  the  lessee 
has  no  right  to  quit  at  discretion. — Northern  Light  M.  Co.  v. 
Blue  Goose  Co.,  25  Cal.  App.  282,  143  P.  540.  If  such  right 
is  to  be  given,  as  in  most  instances  of  common,  equity  it  should 
be  given,  insert  after  the  second  covenant : 

The  said  lessee  reserving  the  right  to  quit  and  abandon  after  at  least 
two  months'  continuous  work  under  this  covenant, 

or  as  the  case  may  be.  When  the  party  quitting  is  to  give 
notice  it  is  not  always  material  that  it  be  given  in  the  manner 
stipulated.— McCahan  v.  Wharton,  121  Pa.  424,  15  Atl.  615, 
16  M.  R.  239.  The  lessee  may  quit  at  will  under  a  lease  con- 
taining no  covenant  to  work. — Glasgow  v.  Chartiers  Co.,  152 
Pa.  48,  25  Atl.  232,  17  M.  R.  523. 

Co-Tenant  Owners — Partnership  Lessees. 

The  legal  relation  of  co-lessees  is  that  of  partners. — Meagher 
v.  Reed,  14  Colo.  335,  350,  9  L.  R.  A.  455,  24  P.  681 ;  Lamont 
v.  Reynolds,  26  Colo.  App.  347,  144  P.  1131;  Manville  v. 
Parks,  7  Colo.  128,  2  P.  212,  15  M.  R.  565;  Walker  v.  Bruce, 
44  Colo.  109,  97  P.  250. 

Co-owners,  however,  are  not  necessarily  partners.  They 
may  work  it  under  such  arrangement  as  does  not  constitute  a 
partnership. — Howard  v.  Luce,  171  F.  584. 

Only  those  co-owners  who  join  in  working  the  mine  become 
partners  and  the  idle  co-tenants  are  not  liable  for  its  debts. — 
Madar  v.  Norman,  13  Ida.  585,  92  P.  572;  Peterson  v.  Beggs, 
26  Cal.  App.  760,  148  P.  541.  A  co-lessee  may  quit  and  his 
liability  cease. — Lamont  v.  Reynolds,  supra. 

Quitting  work  but  with  intent  to  resume  does  not  dissolve 
the  partnership. — Nielson  v.  Gross,  17  Cal.  App.  74,  118  P. 
725. 


368  MINING  LEASE. 

• 

The  lessees  of  a  mine  and  those  whom  they  take  in  as  asso- 
ciates are  partners,  although  the  lease  forbade  an  assignment 
of  the  lease.— Bentley  v.  Brossard,  33  Utah  396,  94  P.  736. 

When  one  of  the  partners  assigns  his  interest  the  partner- 
ship is  not  dissolved,  but  the  new  party  takes  the  grantor's 
place.— Loy  v.  Alston,  172  F.  90,  96  C.  C.  A.  578. 

A  retiring  partner  is  liable  for  wages  where  the  miner  has 
no  notice  that  he  had  sold  out. — Kelley  v.  McNamee,  164  F. 
369,  90  C.  C.  A.  357, 16  Ann.  Gas.  299,  22  L.  R.  A.  (N.  S.)  851. 

A  partnership  exists  where  the  several  owners  operate  the 
mines  together,  one  working,  himself,  and  one  putting  in  a 
man.— Walker  v.  Bruce,  44  Colo.  109,  97  P.  250. 

A  mining  partnership  contract  is  not  within  the  statute  of 
frauds.— Whistler  v.  MacDonald,  167  F.  477,  93  C.  C.  A.  113. 

A  threat  of  one  partner  to  make  no  further  advances  and  let 
the  mine  drown  unless  his  partner  signed  the  cpntract  did  not 
amount  to  duress.— Connolly  v.  Bouck,  174  F.  312,  98  C.  C. 
A.  184. 

The  decease  of  one  of  the  parties  does  not  dissolve  the  part- 
nership.—Boehme  v.  Fitzgerald,  43  Mont.  226,  115  P.  413. 

The  essentials  of  the  pleadings  stated  in  action  by  one 
against  another  or  by  administrator  against  the  survivor. — Id. 

Distinction  between  mining  and  trading  partnership  stated. 
—Dailey  v.  Fitzgerald,  17  N.  M.  137,  Ann.  Gas.  1914D,  1183, 
125  P.  625. 

In  Paul  v.  Cragnaz,  25  Nev.  293,  47  L.  R.  A.  540,  59  P.  857, 
60  P.  983,  the  lessee  of  a  third  interest  was  allowed  heavy  dam- 
ages against  the  majority  owner  disputing  his  right  to  enter 
and  mine.  We  can  not  gather  from  the  opinion  upon  what 
theory  this  anomalous  case  was  decided.  BELKNAP,  J.,  dis- 
sented. It  was  not  based  on  plaintiff's  right  to  a  third  of  the 
profits. 

Assessments— Forfeiture  to  Co-Partner. 

An  assessment  is  denned  in  Shaw  v.  Homer,  7  Colo.  App. 
83,  42  P.  689,  as  "an  apportionment  among  the  parties  inter- 


MINING  LEASE.  369 

ested,  of  an  amount  of  money  necessary  and  not  on  hand  for 
development  purposes."  It  must  be  levied  by  one  having 
authority,  each  partner  must  have  notice  of  it  and  a  forfeiture 
does  not  ensue  for  failure  to  pay  unless  there  is  some  contract 
to  that  effect.  Such  a  contract  was  enforced  in  Joseph  v.  Dav- 
enport, 116  Iowa  268,  89  N.  W.  1081,  22  M.  R.  171. 

Fixtures. 

Unless  otherwise  covenanted  the  fixtures  belong  to  the  lessee 
and  are  removable. — Conrad  v.  Saginaw  Co.,  54  Mich.  249,  20 
N.  W.  39,  52  Am.  Rep.  817.  And  this  applies  even  to  a  for- 
feited lease.— Mickle  v.  Douglas,  75  Iowa  78,  39  N.  W.  198, 
17  M.  R.  137.  A  mortgage  on  fixtures  was  held  good  after 
forfeiture  in  Alberson  v.  Elk  Creek  Co.,  39  Or.  552,  65  P.  978. 
But  after  forfeiture  he  must  remove  them  within  a  reason- 
able-time.—Perry  v.  Acme  Oil  Co.,  44  Ind.  App.  207,  88  N.  E. 
859. 

Engines,  boilers,  hoisting  works,  pumps  and  the  like  annexed 
to  the  land  for  mining  are  fixtures.  And  a  contract  that  they 
shall  be  considered  personalty  is  not  good  against  creditors. — • 
Arnold  v.  Goldfield  Co.,  32  Nev.  447,  109  P.  718. 

The  terms  of  the  lease  will  hold  as  fixtures,  machinery  fur- 
nished to  the  lessee. — Puzzle  M.  Co.  v.  Morse  Bros.  Co.,  24 
Colo.  App.  74,  131  P.  791. 

Letting  by  Agent. 

The  agent  in  charge  has,  under  his  general  and  implied 
powers,  the  right  to  let  short  leases  of  the  ground,  in  blocks 
or  parcels.— Bicknell  v.  Austin  Co.,  62  P.  432. 

And  though  unauthorized  to  lease,  if  the  company  stand  by 
and  allow  the  lessee  to  spend  money,  they  will  be  bound. — 
Hoosac  Co.  v.  Donat,  10  Colo.  529, 16  P.  157. 

In  Franklin  v.  Havalena  Co.,  an  unauthorized  corporate 
lease  and  bond  was  held  void.  The  lessee  to  account  for  ores 
mined  but  allowed  to  offset  instalments  paid. — (Ariz.)  157  P. 
986. 


370  MINING  LEASE. 

Lease  by  One  Co-Tenant — Majority  Control. 

It  has  been  repeatedly  held  that  one  co-tenant  can  not  give  a 
lease  of  the  whole  mine  technically  binding  on  all  the  co- 
owners.  But  it  is  constantly  done  and  often  without  any 
moral  wrong  attaching  to  it.  Of  course,  there  must  be  an 
accounting  to  the  non-joining  co-tenant  on  the  royalties 
received.— Cascaden  v.  Dunbar,  191  F.  471,  112  C.  C.  A.  115. 

"Where  they  can  not  agree  as  to  mode  of  working,  a  majority 
must  control. — Dougherty  v.  Creary,  30  Cal.  290,  89  Am.  Dec. 
116,  1  M.  R.  35,  36 ;  Blackmarr  v.  Williamson,  57  W.  Va.  249, 
4  Ann.  Gas.  265,  50  S.  E.  254. 

A  Colorado  Act  of  1911,  p.  474,  gives  the  right  to  a  major- 
ity interest  to  work  the  mine,  provided  a  statement  of  intent  to 
work  it  be  recorded.  The  act  is  involved  and  confusing,  but 
on  close  construction  seems  to  do  nothing  more  than  to 
declare  what  the  law  was  before  the  act  was  passed  except  to 
require  the  filing  of  this  useless  statement. 

Assignment. 

A  lessee  is  not  in  general  released  from  personal  liability  by 
assigning  his  lease ;  but  remains  in  the  nature  of  a  surety  to 
his  landlord.— Pittslurg  Co.  v.  Greenlee,  164  Pa.  549,  30  Atl. 
489 ;  Wilson  v.  Gerhardt,  9  Colo.  585,  13  P.  705. 

A  Non-Assessable  Interest  in  a  Lease  Is  an  Interest  Charge- 
able with  its  full  share  of  all  cost  of  mining,  as  well  as  of 
freight  and  treatment  as  far  as  the  ore  proceeds  will  pay  such 
cost,  but  not  chargeable  in  case  of  ( working  to  a  loss.  The 
decision  in  Maloney  v.  Love,  11  Colo.'  App.  288,  52  P.  1029,  19 
M.  R.  310,  holding  it  entitled  to  a  full  share  of  the  gross  pro- 
ceeds is  wholly  against  the  meaning  of  the  term  as  understood 
by  miners. 

In  Taylor  v.  Thomas,  31  Colo.  15,  71  P.  381,  22  M.  R,  527,  a 
non-assessable  interest  in  a  lease  was  charged  with  its  full 
proportion  of  expenses  to  the  extent  of  the  ore  proceeds.  This 
decision  necessarily  overrules  the  Maloney  case. 


MINING  LEASE.  371 

Forfeiture. 

Unless  the  lease  provide  for  forfeiture  none  occurs  for  non- 
payment of  rent  or  breach  of  covenant. — Plummer  v.  Hillside 
Co.,  104  F.  208,  43  C.  C.  A.  490;  Wake  field  v.  Sunday  Lake  Co., 
85  Mich.  605,  49  N.  W.  135.  A  forfeiture  enforced  by  collus- 
ion with  employees  of  lessee  is  not  lawful. — 85  Mich.  605,  49 
N.  W.  135.  Forfeiture  can  not  be  enforced  by  a  party  who  is 
himself  in  default.— Ingram  v.  Golden  Co.,  25  Wash.  318,  65 
P.  549. 

Draining  and  pumping  are  counted  as  labor  under  a  cove- 
nant to  keep  at  work.— Miller  v.  Chester  Co.,  129  Pa.  81, 18  Atl. 
565,  16  M.  E.  288. 

Where  parties  have  acted  loosely  in  complying  with  the 
terms  of  lease  the  lessor  can  not  abruptly  become  strict  and 
declare  a  forfeiture.— Westmoreland  Co.  v.  De  Witt,  130  Pa. 
235,  5  L.  E.  A.  731,  18  Atl.  724:  Hukill  v.  Myers,  36  W.  Va. 
639,  15  S.  E.  151;  Price  v.  Black,  126  Iowa  304,  101  N.  W. 
1056.  A  lessor  can  not  lull  the  tenant  by  indulgence  and  then 
suddenly  enforce  forfeiture. — Pyle  v.  Henderson,  65  W.  Va. 
39,  63  S.  E.  762. 

In  Montrozona  Co.  v.  Thatcher,  19  Colo.  App.  371,  75  P.  595, 
a  lease  was  held  forfeited  for  ten  days'  delay  beyond  the  time 
limited  to  sink  100  feet.  This  seems  a  severe  ruling. — • 
Mathews  Co.  v.  New  Empire  Co.,  122  F.  972;  Jones  v.  Scott,  58 
Atl.  281,  209  Pa.  177. 

When  forfeiture  is  provided  for  on  account  of  certain 
breaches,  there  is  no  forfeiture  for  other  breaches;  and  none 
for  breach  of  implied  covenants. — Core  v.  N,  T.  Co.,  52  W.  Va. 
276,  43  S.  E.  128 ;  Rose  v.  Lanyon  Z.  Co.,  68  Kan.  126,  74  P. 
625;  Cluindler  v.  Hart,  161  Cal.  405,  Ann.  Gas.  1913B,  1094, 
119  P.  516. 

The  forfeiture  of  the  lease  for  breach  of  contract  to  not 
assign  forfeits  the  option. — Behrens  v.  Cloudy,  50  Wash.  400, 
97  P.  450. 

A  lessor  (or  vendor)  can  not  forfeit  and  at  same  time 
recover  instalments. — Youngs  M.  Co.  v.  Courtney,  219  F.  868. 


372  MINING  LEASE. 

St.  Louis  Union  Trust  Co.  v.  Galloway  Co.,  193  F.  106,  is  a 
well-considered  case  on  the  limitations  against  forfeiture  of  a 
lease  of  a  large  colliery,  working  the  coal  field  demised  and 
other  coal  by  instroke. 

Relief  Against  Forfeiture. 

Courts  should  promptly  seize  upon  any  circumstances  which 
the  dealings  between  the  parties  will  allow  to  show  a  waiver, 
and  so  relieve  against  "the  harsh  and  at  times  unjust  remedy 
of  f orf eiture. "— Spedden  v.  Sykes,  51  Wash.  267,  98  P.  752. 

Equity  will  not  enforce  a  forfeiture,  but  will  relieve  a 
defaulting  lessee  who  is  willing  and  ready  to  pay  and  pro- 
ceed.— Pheasant  v.  Hanna,  63  W.  Va.  613,  60  S.  E.  618. 

Royalty. 

Under  a  mining  lease  covenanting  to  pay  a  certain  royalty 
and  that  it  shall  amount  to  at  least  a  given  sum,  lessees  are 
not  liable  if  after  full  testing  no  merchantable  ore  is  found. — 
Griblen  v.  Atkinson,  64  Mich.  651, 15  M.  R.  428,  31  N.  W.  570. 
And  see  on  this  point  cases  cited  under  ORE  CONTRACTS  and 
EXHAUSTED  MINE. 

A  mining  lease  based  on  royalty  as  its  main  consideration  is 
forfeited  after  unreasonable  delay  to  begin  work. — Mills  v. 
Hartz,  11  Kan.  218,  94  P.  142. 

Oil  produced  by  a  lessee  is  his  property  and  he  has  the  right 
to  sell  the  whole  of  it  although  a  royalty  percentage  is 
reserved  to  the  lessor. — Coalinga  Co.  v.  Associated  Co.,  16 
Cal.  App.  361,  116  P.  1107. 

The  question  under  a  lease,  whether  net  profits  on  "culm" 
were  to  be  based  on  the  total  cost  of  mining  or  on  the  cost  of 
handling  the  "culm"  only,  held  a  question  for  the  jury. — 
Woodruff  v.  Gunton,  71  Atl.  849,  222  Pa.  376. 

In  calculating  minimum  royalty  each  year  is  a  period  by 
itself.— Woodruff  v.  Gunton,  222  Pa.  384,  71  Atl.  851. 

Changing  terms  of  royalty  in  written  lease  by  parol  is  valid 
and  not  within  the  Statute  of  Frauds. — Nonamaker  v.  Amos, 


MINING  LEASE.  373 

76  N.  E.  949,  73  Ohio  St.  163,  112  Am.  St.  Rep.  708,  4  Ann. 
Gas.  170,  4  L.  R.  A.  (N.  S.)  980. 

The  receipt  of  royalty  admits  the  validity  of  the  lease. — 
Bicknell  v.  Austin  Co.,  62  F.  432;  Burkhard  v.  Mitchell,  16 
Colo.  376,  26  P.  657. 

A  lessee  has  the  right  to  show  that  the  75  per  cent  royalty, 
which  his  lease  called  for,  was  a  mutual  mistake,  25  per  cent 
having  been  intended. — Kuzek  v.  Magaha,  148  F.  618,  76  C. 
C.  A.  465. 

. 
Miscellaneous  Decisions. 

An  advertisement,  bid  and  acceptance  make  a  complete 
agreement  for  a  lease. — Cochrane  v.  Justice  Co.,  16  Colo.  415, 
26  P.  780.  And  the  lessor  can  not  after  such  proceedings 
insist  on  new  and  arbitrary  terms. — Id. 

Whether  a  lease  has  been  extended  is  a  question  of  fact 
which  the  Court  can  not  take  away  from  the  jury. — Riddle  v. 
Mellon,  147  Pa.  30,  23  Atl.  241. 

A  tenant  can  not  take  leases  of  two  hostile  titles  and  then 
compel  his  lessors  to  interplead. — Standley  v.  Roberts,  59  F. 
836,  8  C.  C.  A.  305. 

A  lessee  attempting  to  relocate  the  ground  forfeits  all  rights 
under  his  lease.— Silver  City  Co.  v.  Lowry,  19  Utah  334,  57  P. 
11,  20  M.  E.  55.  Affirmed  Lowry  v.  Silver  City  Co.,  179  U.  S. 
196,  45  L.  Ed.  151,  21  Sup.  Ct.  104,  21  M.  R.  113. 

A  lease  of  a  mining  shaft  means  not  only  the  shaft  but  the 
ground  accessible  through  such  shaft. — Wesling  v.  Kroll,  78 
Wis.  636,  47  N.  W.  943. 

"Waiver  of  conditions  may  be  shown  by  parol. — Equator  Co. 
v.  Guanella,  18  Colo.  548,  33  P.  613;  Bullis  v.  Presidio  M.  Co., 
(Noyes)  75  Tex.  540,  12  S.  W.  397.  And  release  of  royalty.— 
Crawford  v.  Bellevue  Co.,  183  Pa.  227,  38  Atl.  595. 

That  a  lessee  did  not  drive  the  entry  as  fast  as  agreed  is  not 
sufficient  to  justify  a  forced  rescission,  and  the  Court  will  con- 
sider hard  times  as  an  element  of  excuse. — Ross  v.  Sheldon, 
(Ky.)  119  S.  W.  225. 


374  LICENSE. 

"Where  the  provisions  of  a  lease  are  susceptible  of  different 
constructions,  the  one  which  the  parties  have  acted  upon  will 
be  assumed  to  be  correct,  and  one  of  them  can  not  later  assert 
a  different  construction  to  the  detriment  of  the  other. — Mc- 
Keever  v.  Westmoreland  Coal  Co.,  219  Pa.  234,  68  Atl.  €70. 
And  a  surrender  of  the  lease  may  be  proved  by  the  conduct  of 
the  parties.— Pursel  v.  Reading  Co.,  232  F.  801. 


LICENSE. 



The  material  distinctions  between  a  lease  and  a  license  are 
that 

1.  A  license  is  not  exclusive. 

2.  It  invests  the  licensee  with  no  property  in  the  mineral 
until  it  is  severed  from  the  ground. 

3.  It  may  be  revoked  at  any  time. 

4.  It  is  not  transferable. 

The  above  stated  differences  show  that  a  license  practically 
amounts  to  a  mere  privilege  to  work  at  the  owner's  will.  It  is 
a  permission  sufficient  to  defeat  the  charge  of  trespass  but  is 
not  that  property  in  the  soil  such  as  parties  contracting  on 
equal  terms  for  permanent  working  naturally  bargain  for. 
On  the  other  hand,  it  is  usually  granted  without  any,  or  for  a 
nominal  consideration. 

It  has  been  held  that  a  lease  which  did  not  "bind  the  lessee 
to  work  was  a  mere  license. — Wheeler  v.  West,  71  Gal.  126,  ]  1 
P.  871,  78  Cal.  95,  20  P.  45;  Collins  v.  Smith,  151  Ala.  133,  43 
So.  838.  But  these  rulings  would  be  indefensible  if  the  party 
had  gone  into  possession  under  the  implied  covenant  to  work. 
In  every  lease,  verbal  or  written,  reserving  royalty,  there  is 
an  implied  covenant  to  work  (See  p.  364)  and  the  express 
obligation  to  work  is  not  one  of  the  distinctions  between  lease 
and  license.  The  exclusive  right  to  mine  implies  a  lease  and 
not  a  license. — Consolidated  Coal  Co.  v.  Peers,  150  111.  344,  37 
N.  E.  937 ;  Stinson  v.  Hardy,  27  Or.  584,  41  P.  116. 


LICENSE.  375 

An  option  to  purchase  with  privilege  to  work  is  a  license 
coupled  with  an  interest ;  and  after  expenditures  made  is  irrev- 
ocable.— Ha II  v.  Abraham,  44  Or.  477,  75  P.  882.  The  same 
where  there  are  expenditures  but  no  option. — Hosford  v.  Met- 
calf,  113  Iowa  240,  84  N.  W.  1054,  21  M.  R.  198. 

The  general  nature  of  a  license  as  distinguished  from  a  lease 
or  other  like  grant  is  stated  in  Massot  v.  Moses,  3  S.  C.  168,  16 
Am.  Rep.  697,  8  M.  R.  607 ;  Doe  v.  Wood,  9  M.  R.  182,  2  B.  & 
A.  724;  McCullagh  v.  Rains,  75  Kan.  458,  89  P.  1041. 

1.  Not  Exclusive. 

The  owner  may  work  himself,  or  allow  others  to  work  upon 
the  same  ground. — Johnstown  Co.  v.  Cambria  Co.,  9  M.  R.  226, 
32  Pa.  241,  72  Am.  Dec.  783;  Woodside  v.  Ciceroni,  93  F.  1, 
35  C.  C.  A.  177. 

2.  Passes  No  Property  or  Vested  Estate. 

A  license  is  authority  for  the  temporary  occupation  of  land 
or  to  enter  upon  and  do  particular  acts  in  and  about  it.  It 
creates  no  estate. — Fuhr  v.  Dean,  26  Mo.  116,  69  Am.  Dec.  484, 
6  M.  R.  216.  After  it  is  broken  by  licensee  the  rock  in  a 
quarry  belongs  to  him. — McKee  v.  Brooks,  20  Mo.  526. 

3.  Revocability. 

Although  revocable  the  owner  can  not  arbitrarily  oust  the 
licensee  without  compensation  for  expenditures  made. — Bush 
v.  Sullivan,  9  M.  R.  214;  3  G.  Greene  (Iowa)  344,  54  Am.  Dec. 
506.  After  a  proper  revocation  the  licensee  has  no  title  in 
what  he  continues  to  break  and  sever. — Williams  v.  Morrison, 
32  F.  177.  A  license  once  given  continues  till  revoked. — 
Keeler  v.  Green,  12  M.  R.  465,  21  N.  J.  Eq.  27.  An  executed 
license  (to  build  a  ditch)  amounts  to  a  grant. — De  Graff  enried 
v.  Savage,  9  Colo.  App.  131,  47  P.  902.  After  revocation 
further  working  by  licensee  may  be  enjoined. — Clark  v.  Wall, 
32  Mont.  219,  79  P.  1052. 


376  PROSPECTING  CONTRACT. 

4.    Not  Assignable. 

Being  only  a  personal  privilege  any  transfer  operates  as  a 
forfeiture.— Dark  v.  Johnston,  9  M.  R.  283,  55  Pa.  164,  93  Am. 
Dec.  732.  But  if  the  license  imply  a  grant  of  the  ore  it  may  be 
assigned.— Muskett  v.  Hill,  5  Bing.  (N.  C.)  694. 

By  One  Co-Tenant. 

As  to  whether  at  all  or  to  what  extent  the  license  of  one  or 
more  of  several  co-tenants  is  valid,  see  Job  v.  Potion,  L.  R.  20 
Eq.  84,  14  M.  R.  329 ;  Tipping  v.  Bobbins,  71  Wis.  507,  37  N. 
W.  427 ;  Omaha  Co.  v.  Tabor,  16  M.  R.  184, 13  Colo.  41, 16  Am. 
St.  Rep.  185,  5  L.  R.  A.  236,  21  P.  925. 

In  Shaw  v.  Caldwell  a  peculiar  deed  of  a  half  interest  in  a 
mine  was  construed  to  be  a  grant  of  such  half  and  as  a  license 
to  work  the  other  half.— 16  Cal.  App.  1,  115  P.  941. 


oH 


PROSPECTING  CONTRACT. 


Much  litigation  has  grown  out  of  contracts  of  this  kind 
owing  to  the  loose  manner  in  which  they  are  generally  under- 
taken and  the  strong  inducements  to  shirk  their  obligations 
when  a  rich  discovery  has  been  made. — Murley  v.  Ennis,  12 
M.  R.  360,  2  Colo.  300 ;  Johnstone  v.  Robinson,  16  F.  903,  12 
M.  R.  396,  3  McCrary  42. 

The  following  form  covers  the  legal  points  necessary  to  be 
guarded  in  this  class  of  contract : 

GRUB    STAKE   CONTRACT. 

In  consideration  of  provisions  advanced  to  me  by  Albert  "B.  Roeder, 
and  of  his  agreement  to  supply  me  from  time  to  time,  as  I  may  reasonably 
demand  them,  with  tools,  grub  and  mining  outfit  generally,  and  the  sum 
of  fifty  dollars  in  hand  paid,  I  agree  to  prospect  for  lodes  and  deposits 
in  Grand  County,  Utah,  and  to  locate  all  discoveries  which  I  may  consider 
worth  the  expenditure,  and  record  the  same  in  the  joint  names  of  said 
outfitter  and  myself,  and  in  our  names  only,  as  equal  owners. 


PROSPECTING  CONTRACT.  377 

My  time  and  labor  shall  stand  against  his  money,  provisions,  etc.,  as 
aforesaid.  All  expenses  of  survey  and  record  shall  be  paid  by  the  out- 
fitter, and  I  agree  to  make  no  debts  on  account  of  this  agreement.  Work 
clone  on  claims  after  record  and  before  the  expiration  of  this  contract 
shall  be  considered  as  done  under  this  contract,  and  no  charge  for  labor 
or  time  shall  be  made  for  the  same. 

This  contract  shall  stand  good  during  the  whole  of  the  summer  and 
fall  of  1916  (expiring  Dec.  1st)  and  during  all  of  that  period  I  will  not 
work  or  prospect  on  my  own  account,  or  for  any  parties  other  than  said 
outfitter. 

Dated  April  1,  1916.  L.  L.  CRAPO. 

I  agree  to  the  terms  above  stated. 

ALBERT  B.  ROEDER. 

Under  the  following  form  the  prospector  is  allowed  wages 
and  takes  a  similar  interest  in  lodes  found. 

AGREEMENT  of  date  March  7,  A.  D.  1916,  between  S.  P.  McGough, 
Eobert  Pitcairn,  and  Arthur  D.  Bullis,  outfitters,  and  C.  H.  PicTcett, 
prospector. 

WFTNESSETH,  That  said  outfitters  agree  to  pay  to  said  prospector  on 
demand  seventy-five  dollars  ($75)  for  the  purchase  of  tools  and  packing 
outfit,  and  twenty-five  dollars  ($25)  for  railroad  fare  and  expenses  from 
Idaho  Springs  to  Creede,  and  to  allow  said  prospector  wages  at  three 
dollars  per  day  for  each  secular  day  after  arrival  at  that  place,  until 
November  1,  1916,  unless  this  contract  is  rescinded  by  notice  before  that 
date,  and  to  pay  all  expenses  of  surveys  and  records  to  be  made  under 
this  contract  and  for  powder,  fuse  and  other  mining  materials,  if  required 
by  said  prospector,  to  the  extent  of  fifty  dollars. 

And  in  consideration  of  the  premises,  said  prospector  agrees  industri- 
ously and  to  the  best  of  his  skill  to  prospect  for  lodes  and  deposits  in  the 
neighborhood  of  Creede  camp,  within  the  limits  of  Hinsdale,  Rio  Grande 
and  Mineral  counties,  and  to  locate  and  record  all  discoveries  which  iii 
his  judgment  are  worth  holding,  in  the  joint  names  of  all  parties  hereto — 
one-fourth  interest  to  each. 

And  that  he  will  use  no  company  name  and  make  no  debts  against  his 


And  that  he  will  at  least  once  each  month  report  progress  and  all  dis- 
coveries made,  by  letter,  to  said  A.  D.  BULLIS. 

All  work  done  in  development  after  record  shall  be  considered  as  work 
done  under  this  agreement. 

And  said  prospector  agrees  further  not  to  prospect  on  his  own  account 
nor  for  any  other  persons  during  the  lifetime  of  this  contract,  and  if  at 


378  PROSPECTING  CONTRACT. 

any  time  within  one  year  thereafter  he  shall  become  interested  by  location 
or  purchase  in  any  claims  on  which  he  may  have  prospected  under  this 
contract,  he  will  allow  his  associates  to  take  an  equal  interest  with  him- 
self on  the  same  terms  and  at  the  same  cost  at  which  he  has  acquired  such 
interest. 

On  final  settlement  full  wages  are  to  be  allowed  as  above  agreed,  but 
£aid  prospector  shall  be  charged  with  his  full  fourth  of  any  expenses 
over  and  above  the  sums  herein  expressed,  and  shall  account  and  pay  for 
all  tools  and  supplies  on  hand  when  contract  expires,  if  terminated  on 
his  notice;  but  shall  keep  such  tools  and  supplies  if  contract  determined 
at  outfitters'  election,  or  by  expiration  of  the  full  term  limited,  or  by 
failure  to  remit  proper  account  monthly  on  demand.  And  the  said  pros- 
pector shall  have  no  right  to  quit  on  notice  until  he  shall  have  prospected 
two  full  months  under  this  agreement. 

Witness  the  hands  and  seals  of  said  parties. 

S.  P.  McGouGH.  [SEAL.] 

ROBERT  PITCAIRN.  [SEAL.] 

A.  D.  BULLIS.  .  [SEAL.] 

C.  H.  PlCKETT.  [SEAL.] 

The  contract  does  not  require  a  seal,  and  is  not  within  the 
Statute  of  Frauds,  and  therefore  may  be  verbal. — Hurley  v. 
Ennis,  supra;  Moritz  v.  Lavelle,  77  Cal.  10,  11  Am.  St.  Rep. 
229,  18  P.  803,  16  M.  E.  236 ;  Meylette  v.  Brennan,  20  Colo. 
242,  38  P.  75 ;  Raymond  v.  Johnson,  17  Wash.  232,  61  Am.  St. 
Rep.  908,  49  P.  492,  19  M.  R.  56 ;  Shea  v.  Nilima,  133  F.  209, 
66  C.  C.  A.  263;  Doyle  v.  Burns,  123  Iowa  488,  99  N.  W.  195; 
Mack  v.  Mack,  39  Wash.  190,  81  P.  707 ;  Cascaden  v.  Dunbar, 
157  F.  62,  84  C.  C.  A.  566;  Clark  v.  Mitchell,  35  Nev.  447,  130 
P.  760,  134  P.  448. 

The  association  is  practically  a  partnership. — Lawrence  v. 
Robinson,  12  M.  R.  387,  4  Colo.  567 ;  Abbott  v.  Smith,  3  Colo. 
App.  264,  265,  32  P.  843. 

A  grubstake  contract  does  not  make  a  partnership  unless  it 
goes  beyond  the  mere  agreement  to  furnish  supplies  in  con- 
sideration of  an  interest  in  the  discoveries. — Costello  v.  Scott, 
30  Nev.  43,  93  P.  1,  94  P.  222. 

Where  a  partnership  for  the  location  of  claims  was  prac- 
tically stranded  one  of  the  parties  was  justified  in  transferring 


PROSPECTING  CONTRACT.  379 

a  part  of  the  property  to  prevent  the  loss  of  it  all  by  failure 
to  do  the  annual  labor. — Id. 

A  party  who  enters  into  a  prospecting  lease,  each  one  to  be 
interested  in  proportion  to  his  payments,  has  no  equity  if  he 
fails  to  tender  his  share  until  after  mineral  is  struck.; — Cam- 
eron v.  Burnham,  146  Cal.  580,  80  P.  929. 

If  the  outfitter  neglect  to  furnish  the  agreed  and  necessary 
supplies,  such  failure  may  be  treated  as  a  condition  precedent, 
and  the  prospector  is  at  liberty  to  search  for  mineral  upon  his 
own  account. — Hurley  v.  Ennis,  supra;  Miller  v.  Butterfield, 
17  M.  R.  222,  79  Cal.  62,  21  P.  543. 

"Where  a  prospector  made  locations  which  he  concealed  from 
his  outfitters,  and  afterwards  sold,  he  was  compelled  to  account 
for  the  outfitters'  share  of  the  price. — Jennings  v.  Rickard, 
15  M.  R.  624,  625,  10  Colo.  395,  15  P.  677.  But  he  was  not 
held  in  this  instance  to  account  to  outfitter  for  any  share  in  a 
lode,  the  float  of  which  he  discovered  while  prospecting,  but 
did  not  find  the  lode  till  afterward. 

A  party  so  locating  in  his  own  name  becomes  trustee  for  the 
benefit  of  his  associates. — Cascaden  v.  Dunbar,  157  F.  62,  84 
C.  C.  A.  566. 

"Where  an  association  for  prospecting  purposes  is  abandoned, 
the  several  late  partners  may  perfect  locations  on  discoveries 
made  on  their  several  account. — Page  v.  Summers,  15  M.  R. 
617,  70  Cal.  121, 12  P.  120.  If  one  of  the  associates  quits  before 
mineral  is  struck  he  can  not  claim  an  interest  in  the  perfected 
location. — McLaughlin  v.  Thompson,  2  Colo.  App.  135,  29  P. 
816.  Delay  to  assert  an  interest  in  the  discoveries  is  fatal. — 
Cisna  v.  Mallory,  19  M.  R.  227,  84  F.  851. 

"When  a  prospecting  partnership  was  ended,  but  some  of 
the  party  afterwards  assayed  a  piece  of  rock  picked  up  on 
the  first  trip,  went  back  and  found  a  lode  of  value,  the  other 
original  parties  had  no  equity  in  this  discovery. — McGahey  v. 
Oregon  King  Co.,  165  F.  86. 

When  the  discoverer  points  out  the  place  for  location  upon 
a  verbal  arrangement  with  the  second  party  to  take  up  the 


380  PROSPECTING  CONTRACT. 

claim  for  their  joint  benefit  and  the  second  party  excludes  the 
discoverer  from  the  location  there  arises  a  resulting  trust  in 
favor  of  the  discoverer. — Stewart  v.  Douglass,  148  Gal.  511, 
83  P.  699. 

Where  a  defendant  located  a  claim  in  his  own  name  and 
sold  it  to  a  company  for  stock,  being  under  prospecting  con- 
tract with  plaintiff,  plaintiff  is  entitled  to  his  share  of  the 
stock  upon  payment  of  his  share  of  the  expenses. — Mack  v. 
Mack,  39  Wash.  190,  81  P.  707. 

As  to  the  degree  of  proof  necessary  to  establish  the  contract 
compare  Rice  v.  Rigley,  20  M.  R.  553,  7  Ida.  115,  61  P.  290, 
and  Morrow  v.  Matthew,  10  Ida.  423,  79  P.  196.  The  consid- 
eration must  be  adequate.  Fifty  dollars  is  not  enough  to  outfit 
a  prospector  from  California  to  Alaska. — Prince  v.  Lamb,  20 
M.  R.  419, 128  Cal.  120,  60  P.  689. 

A  contract  to  convey  one-fifth  interest  in  whatever  mining 
property  defendant  might  locate  or  acquire,  held  non-enforce- 
able by  specific  performance,  because  inequitable  for  want  of 
limitation  of  time  and  also,  in  this  particular  case,  for  inad- 
equacy of  consideration. — Marks  v.  Gates,  154  F.  481,  83 
C.  C.  A.  321,  12  Ann.  Gas.  120,  14  L.  R.  A.  (N.  S.)  317. 

Prospecting  Private  Ground. 

Permission  by  the  owner  to  prospect  his  ground  must  be 
exercised  within  a  reasonable  time. — Cahoon  v.  Bayard,  48 
Hun  619,  1  N.  Y.  Supp.  814.  But  in  Woodside  v.  Ciceroni, 
93  F.  1,  35  C.  C.  A.  177,  the  license  was  construed  as  perpetual. 
On  contract  to  prospect  and  test  land  for  mineral  value,  for 
what  amounts  to  sufficient  search,  see  Wells  v.  Leek,  151  Pa. 
431,  25  Atl.  101 ;  Jamestown  Co.  v.  Egbert,  Id.  151 ;  Petroleum 
Co.  v.  Coal  Co.,  18  S.  W.  65,  89  Tenn.  381 ;  Cleveland  Cliffs  I. 
Co.  v.  East  Itasca  Co.,  146  F.  232,  76  C.  C.  A.  598. 

The  use  of  a  witchhazel  rod  to  test  for  ore  not  allowed  as 
proof;  the  party  agreeing  to  prospect  is  bound  to  sink. — 
Berry  v.  Frisbie,  120  Ky.  337,  86  S.  W.  558. 


WORKING  CONTRACTS.  381 

Knowledge  of  value  is  good  consideration  for  the  sale  of 
such  knowledge. — Reed  v.  Golden,  28  Kan.  632,  42  Am. 
Rep.  180. 

An  extremely  interesting  case  on  this  point  is  Edelman  v. 
Latshaw.  A  stock  certificate  in  a  mining  company  had  been 
sold  for  a  nominal  sum.  After  the  sale  and  after  the  estate 
was  settled  up,  the  executor  by  letter  addressed  to  the  deceased, 
learned  it  had  value  and  got  it  back  for  a  small  payment  on 
false  representations.  But  the  knowledge  of  value  contained 
in  the  letter  which  the  executor  had  received,  we  believe  was 
his  property  and  not,  as  the  Court  held,  the  property  of  the 
then  holder  of  the  stock.— 180  Pa.  419,  36  Atl.  926,  18 
M.  R.  608. 


WORKING  CONTRACTS. 


The  right  to  "work"  a  mine  implies  the  right  to  remove 
and  sell  the  ore.— Bailey  v.  Bond,  77  F.  406,  23  C.  C.  A.  206, 
18  M.  R.  466. 

A  contract  to  sink  a  shaft  does  not  necessarily  imply  that 
the  vein  will  be  followed. — Buckeye  Co.  v.  Carlson,  16  Colo. 
App.  446,  66  P.  168,  21  M.  R.  499.  The  contractor  is  not 
bound  to  timber  where  the  contract  is  silent  on  that  point. — 
No.  5  Min.  Co.  v.  Bruce,  3  M.  R.  146,  4  Colo.  293. 

Nor  to  furnish  packer  and  tubing  on  contract  to  sink  an 
oil  well— Collier  v.  Monger,  75  Kan.  550,  89  P.  1011. 

Contract  to  sink  to  bed  rock  is  complete  without  disclosing 
bed  rock  along  the  whole  bottom  of  the  shaft. — Meehan  v. 
Nelson,  137  F.  731,  70  C.  C.  A.  165. 

On  a  contract  to  sink  on  the  vein,  where  the  vein  disappears 
the  contractor  is  not  bound  to  go  down  through  the  country. — 
Woodworth  v.  McLean,  97  Mo.  325,  11  S.  W.  43,  17  M.  R,  194. 

Measure'  of  recovery  where  work  on  shaft  was  ordered 
stopped  before  completion. — Mooney  v.  York  Co.,  82  Mich.  263, 
46  N.  W.  376. 


382  EXAMINATION  OF  TITLE. 

For  breach  of  covenant  by  lessee  to  furnish  plant,  drive 
tunnel,  etc.,  see  Cleopatra  Co.  v.  Dickinson,  28  Wash.  211,  68 
P.  456. 

Where  the  mine  is  to  furnish  supplies  to  the  contractor,  on 
failure  he  may  quit  and  sue  for  the  work  already  done. — 
Davis  v.  Brown  County  Co.,  21  S.  D.  173,  110  N.  W.  113; 
Degnan  v.  Nowlin,  5  Ind.  Terr.  312,  82  S.  W.  758 ;  Bailey  v. 
Fredonia  Co.,  82  Kan.  746,  109  P.  411. 

A  contractor,  stopped  by  the  company  on  his  contract  to 
dig  six  gas  wells,  allowed  the  difference  between  the  contract 
price  and  the  cost  of  sinking — in  other  words,  profits— as  his 
measure  of  da'mages. — Fredonia  Co.  v.  Bailey,  77  Kan.  296, 
94  P.  258. 

It  is  a  fair  construction  of  a  contract  of  doubtful  wording 
vc  sink  several  oil  wells,  that  each  should  be  paid  for  as  it  was 
eujik. — Bailey  v.  Fredonia  Co.,  supra. 

A  covenant  by  the  grantee  of  an  undivided  interest,  to  work 
the  v&Lae,  is  only  a  personal  contract  between  the  parties  and 
its  viot\iion  does  not  cancel  the  deed. — Womble  v.  Womble, 
14  Cal.  App.  739,  113  P.  353. 

A  min&j  hired  for  the  mining  season  in  Alaska  and  dis- 
charged wiUiout  cause  may  recover  for  the  balance  of  the 
season. — Ch^okovitch  v.  Porcupine  Co.,  73  Wash.  48,  131 
P.  459. 

A  contract  U  keep  four  men  at  work  twenty  days  per  month 
strictly  constnud — not  allowing  an  equivalent  number  of 
shifts  to  be  a  compliance. — Arkoosh  v.  Sorrenson,  (Utah)  150 
P.  959. 


EXAMINATION  OF  TITLE. 

The  written  title  t*  *  mining  claim  begins  with  -the  location 
certificate,  after  which  the  conveyances  and  incumbrances 
should  appear  on  the  ab&Jract  as  in  other  classes  of  real  estate. 


EXAMINATION  OF  TITLE.  383 

Inspection  and  Survey. 

In  addition  to  the  abstract  of  title  a  survey  and  local  inspec- 
tion are  indispensable  to  security,  especially  when  the  claim 
is  not  patented. 

This  inspection  and  survey  should  result  in  ascertaining  the 
depth  of  discovery  shaft,  and  whether  it  shows  a  well  defined 
crevice ;  whether  the  location  notice  was  duly  posted  and  what 
it  contains  (p.  38);  whether  the  stakes  were  properly  set; 
whether  the  claim  (as  far  as  such  fact  can  be  fairly  ascer- 
tained) is  laid  so  as  to  cover  the  apex  or  general  course  of  the 
lode,  and  more  especially  what  shafts,  tunnels,  prospect  holes, 
stakes,  notices  and  improvements  indicate  the  presence  of 
hostile  claims ;  and  if  such  intervening  or  overlapping  hostile 
claims  are  found,  their  seniority  or  juniority  should  be 
established. 

The  abstract  (at  least  until  patent)  may  show  a  clear  chain 
of  title,  and  may  be  based  on  a  record  senior  to  other  records 
on  the  same  vein,  and  still  the  title  may  be  absolutely  worth- 
less.—Patterson  v.  Hitchcock,  5  M.  R.  542,  3  Colo.  533. 

An  adverse  senior  discovery  may  exist  within  a  few  feet  of 
the  discovery  of  the  claim  under  examination.  Every  hole  or 
stake  in  proximity  to  the  claim  should  be  examined,  its  history 
traced,  and  the  possibility  of  danger  from  that  source  guarded 
against. 

Whether  the  annual  labor  has  been  done  should  also  be 
ascertained. 

Such  inspection  having  been  made,  the  course  of  examina- 
tion will  be  as  follows : 

1. THE  ABSTRACT. 

The  abstract  should  be  certified  by  the  Recorder  or  by  some 
reputable  abstract  firm,  to  contain  all  deeds  and  instruments 
filed  or  recorded,  conveying,  encumbering  or  in  any  manner 
affecting  title  to  the  property  in  question. 

The  abstract,  however,  amounts  to  nothing  more  than  a 
guide  or  memorandum  to  the  attorney  in  his  examination. 


384  EXAMINATION  OF  TITLE. 

Each  deed  and  other  instrument  should  be  inspected  at  length, 
either  by  the  original,  by  the  record  or  by  a  certified  copy. 
The  abstract  should  be  furnished  by  the  vendor  at  his  own 


2. — LOCATION  CERTIFICATE. 

The  material  points  to  be  observed  in  the  location  certificate 
are  that  it  contains  all  that  is  required  by  the  terms  of  A.  C. 
Section  2324,  and  by  the  statute  of  the  particular  State ;  ante 
p.  68. 

3. — CONVEYANCES. 

A  mine  is  conveyed  by  deed  or  encumbered  by  mortgage  the 
same  as  other  real  estate. 

The  description  should  contain: 

First — The  name  of  the  lode. 

Second — If  patented  the  number  of  the  survey  lot. 

Third — Mining  district,  county  and  State. 

Placer  claims  are  usually  described  by  their  names,  or  if 
patented,  by  the  names  and  number  of  the  survey  lot.  In 
early  locations  they  were  often  numbered  with  reference  to 
the  local  gulch. 

Deeds  by  Married  Women. 

The  separate  acknowledgment  by  a  married  woman  is  not 
required  in  Colorado,  but  where  required  in  any  State,  such 
acknowledgment  is  generally  essential  to  pass  the  wife's  title, 
and  is  not  merely  a  mode  of  proof  of  the  delivery  of  the  deed 
which  is  the  usual  function  of  an  acknowledgment.  See  p.  341. 

After  Acquired  Title. 

A  warranty  deed  conveys  to  the  grantee  any  after  acquired 
title  of  his  grantor,  and  even  a  quit-claim  made  pending  appli- 
cation, may  carry  the  patented  title  to  the  grantee. — Crane  v. 
Salmon,  41  Cal.  63;  Bradbury  v.  Davis,  3  M.  R.  398,  5 
Colo.  265.  »  ~IQ 


EXAMINATION  OF  TITLE.  385 

4. — PATENTS. 

Where  the  claim  is  patented  the  patent  should  appear  in 
the  abstract  although  failure  to  record  the  patent  is  not  the 
same  as  a  like  failure  in  case  of  a  deed,  a  certified  copy  of  the 
patent  being  always  procurable  from  the  General  Land  Office. 
The  patent  carries  the  title  back  to  the  entry  at  least. — Benson 
Co.  v.  Alta  Co.,  145  U.  S.  428,  36  L.  Ed.  762,  12  Sup.  Ct.  877, 
17  M.  R.  488. 

The  form  of  patent  is  quite  different  from  that  of  a  patent 
for  agricultural  lands,  and  contains  specific  exceptions  as  to 
easements,  etc.,  and  in  the  form  used  before  1888  and  in 
instances  since  that  date  a  plat  of  the  survey ;  and  excepts  the 
surface  ground  of  any  previous  entry  crossing  the  line  of  the 
lot  conveyed. 

Where  such  exclusions  occur  the  patentee  has  no  claim  to 
the  vein  in  such  excluded  area.  And  in  instances  the  date  of 
application  and  of  entry  or  even  of  the  discovery  may  continue 
to  be  material  where  the  question  of  relation  arises.  See  p.  172. 

Where  a  patent  has  been  issued  there  is  no  necessity  for  a 
strict  examination  of  the  location  certificate  or  of  the  various 
acts  of  location.  It  cures  all  defects  incident  to  the  location 
and  in  most  instances  any  formal  break  in  the  chain  of  title 
prior  to  the  application.  And  especially  it  cuts  out  prior 
hostile  titles  which  have  failed  to  adverse  or  to  successfully 
maintain  their  adverse. 

But  it  does  not  divest  the  title  of  a  co-tenant  dropped  in  the 
patent  application  (see  p.  156),  or  at  least  it  may  be  possible 
for  a  party  having  a  claim  to  an  interest  in  the  possessory  title 
to  prove  an  equity,  such  as  would  make  the  patentee  trustee  of 
the  title  for  his  use.  Nor  does  it  dispense  with  the  importance 
of  a  surface  examination  to  see  that  the  corners  agree  with  the 
plat  and  that  the  survey  lot  substantially  encloses  the  vein. 

5. PLAT  OP  PATENT. 

In  .the  older  form  of  patents  was  inserted  a  diagram  in 
which  the  ground  conveyed  was  colored.  Where  the  patent 
contains  no  such  plat  a  certified  copy  should  be  obtained  from 


386  EXAMINATION  OF  TITLE. 

the  Surveyor  General's  office,  and  a  comparison  of  such  copy 
of  plat  made  with  the  metes  and  bounds  contained  in  the 
description  and  the  exclusions,  if  any,  recited  in  the  patent. 

6. — LIENS. 

A  patent  does  not  divest  liens  accrued  against  the  possessory 
title.  They  are  especially  saved  by  the  terms  of  R.  S.  Sec.  2332. 

A  judgment  not  becoming  a  lien  until  a  transcript  of  the 
same  has  been  recorded,  such  lien  should  show  on  the  abstract. 

There  is  also  a  class  of  possible  liens  which  have  to  be  the 
subject  of  parol  inquiry,  such  as  mechanics'  liens,  liens  in 
favor  of  the  State  on  an  audited  account  or  for  fine  or  costs 
or  suretyship  in  criminal  cases.— R.  S.  Colo.  Sees.  2009,  2010. 

7. — PARTIES  IN  POSSESSION. 

If  parties  are  in  actual  possession,  claiming  adversely  to 
the  grantor,  or  claiming  under  him  as  lessees,  their  possession 
is  an  assertion  of  their  claim,  whatever  it  may  be,  of  which 
the  purchaser  must  take  notice  at  his  peril. — Coffee  v.  Emigh, 
15  Colo.  184,  10  L.  R.  A.  125,  25  P.  83. 

8. — CONCLUSION — DUTY  OF  COUNSEL. 

If,  from  the  abstract  or  from  any  of  the  certificates  or  from 
inspection  of  any  deed,  instrument  or  record  in  the  chain  of 
title;  or  as  the  result  of  his  client's  inspection  and  survey  of 
the  premises,  or  from  any  other  source,  the  attorney  is 
informed  of  any  adverse  title,  or  of  any  outstanding  trust  or 
adverse  interests,  or  of  any  missing  conveyance  in  the  chain  of 
title,  or  of  any  serious  defect  in  the  body  or  acknowledgment 
of  any  instrument  of  such  a  nature  as  to  invalidate  the  title — 
the  true  condition  of  such  title  should  then,  with  due  secrecy, 
be  expressed  to  the  client.  And  when  the  attorney  has  satisfied 
his  own  mind  upon  all  such  questions  of  law  as  may  have 
arisen  during  the  course  of  his  examination,  the  client  has  a 
right  to  be  advised  of  all  points  which  remain  in  doubt,  and  of 
any  contingencies  which  may  threaten  the  quiet  enjoyment,  or 
would  obstruct  a  sale  of  the  premises;  and  of  all  steps  which 
if  presently  taken  may  avoid  such  conditions  and  perfect  the 


ALIENS.  387 

title,  so  that  the  true  value  of  the  title  in  law  shall  be  repre- 
sented to  the  client,  that  is,  the  intending  purchaser.  For  in 
all  cases  of  examination  of  title,  the  attorney  should  be 
selected,  or  at  least  assented  to,  by  the  purchaser,  if  it  be  a 
sale ;  by  the  lender  of  money,  if  it  be  a  mortgage ;  because  from 
the  necessity  of  the  case,  he  acts  in  the  interest  of  the  pur- 
chaser and  of  the  lender,  and  not  in  that  of  the  grantor  or  of 
the  mortgagor ;  the  charge  for  his  examination  should  be  made 
against  the  same  side ;  the  charge  for  the  conveyance,  on  the 
other  hand,  is  by  custom  made  against  the  vendor. 


ALIENS. 

Ownership  of  Patented  Title. 

The  right  of  aliens,  resident  or  non-resident,  to  acquire  title 
to  patented  property,  depends  upon  the  local  legislation  which 
in  general  fully  provides  for  such  ownership.  The  Colorado 
Statute  (R.  S.  Chap.  3,  and  Art.  2,  Sec.  27,  of  the  Constitu- 
tion) allows  ownership  by  either  resident  or  non-resident 
aliens. 

A  patent  to  the  use  of  an  alien  may  not  be  attacked  except 
by  direct  governmental  inquisition. — Justice  Co.  v.  Lee,  21 
Colo.  260,  52  Am.  St.  Rep.  216,  40  P.  444,  18  M.  R.  220. 

Ownership  of  Possessory  Title. 

The  Mining  Acts  throw  open  the  public  domain  only  to  citi- 
zens and  to  those  who  have  declared  their  intentions  to  become 
citizens.— A.  C.  Sec.  2319. 

It  would  seem  from  their  language  that  an  alien  could  not 
locate  a  claim  and  if  he  could  not  locate,  his  holding  by  deed 
and  perhaps  by  devise  or  descent  might  be  questioned. 

But  the  matter  in  its  practical  importance  is  controlled  by 
tiu>  ml*  laid  down  in  opinions  of  the  Federal  Supreme  Court, 


388  ALIENS. 

Manuel  v.  Wulff,  152  U.  S.  505,  38  L.  Ed.  532,  14  Sup.  Ct.  651, 
18  M.  R.  85;  McKinley  Co.  v.  Alaska  Co.,  183  U.  S.  563,  46 
L.  Ed.  331,  22  Sup.  Ct.  84,  21  M.  R.  730,  that  the  question  of 
ownership  by  an  alien  is  a  matter  between  himself  and  the 
government  and  that  as  long  as  the  government  does  not  make 
inquisition  to  deprive  him  of  his  title,  or  become  a  party  to 
proceedings  to  perfect  the  title,  his  title  even  when  he  claims 
under  his  own  location  is  good  against  all  the  world. 

The  issue  of  alienage  can  not  be  raised  in  a  mining  suit 
where  the  United  States  is  not  a  party. — Holdt  v.  Hazard,  10 
Cal.  App.  440,  102  P.  540;  contra,  Galbreath  v.  Simas,  161 
Cal.  303, 119  P.  86. 

Adverse  Claim  Cases. 

As  the  government  rarely  initiates  such  proceedings  the 
alien  in  contest  with  a  citizen  has  therefore  the  same  standing 
as  the  citizen  (Tornanses  v.  Melsing,  109  F.  710,  47  C.  C.  A. 
596)  save  only  on  application  for  patent  and  in  suits  support- 
ing adverse  claims,  in  which  proceedings  the  government  is  an 
interested  party  and  the  citizenship  of  the  parties  becomes 
material. 

If  the  parties  to  such  suit  are  citizens  the  fact  that  the 
locator  was  an  alien  or  that  one  of  several  locators  was  an 
alien  or  that  intermediate  holders  were  aliens  becomes  wholly 
immaterial. — North  Noonday  M..  Co.  v.  Orient  Co.,  9  M.  R.  529, 
530,  1  F.  522,  6  Sawy.  299 ;  Providence  Co.  v.  Burke,  6  Ariz. 
323,  57  P.  641, 19  M.  R.  625 ;  Gorman  Co.  v.  Alexander,  2  S.  D. 
557,  51  N.  W.  346 ;  Billings  v.  Aspen  Co.,  52  F.  250,  3  C.  C.  A. 
69 ;  Stewart  v.  Gold  Co.,  29  Utah  443,  82  P.  475. 

The  Citizenship  of  the  Original  Locator  Is  Material  Only 

where  he  continues  to  be  the  claimant  to  the  time  of  the  insti- 
tution of  the  adverse  suit. 

It  is  not  even  inquired  into  by  the  land  office  where  patent 
is  applied  for  by  the  grantee  of  the  original  locator.  Not- 
withstanding the  numerous  holdings  cited  in  the  preceding 


ALIENS.  389 

paragraph,  the  case  of  Duncan  v.  Eagle  Rock  Co.,  48  Colo.  569, 
139  Am.  St.  Rep.  288,  111  P.  588,  rules' to  the  contrary. 

Declaration  of  Intention. 

One  who  has  declared  his  intention  to  become  a  citizen  of 
the  United  States  may  locate,  enter  and  patent  a  claim  the 
same  as  a  citizen. 

The  Act  of  Naturalization  Is  Retroactive,  So  That  if  an 

alien  had  located  a  claim  and  afterwards  became  or  declared 
his  intention  to  become  naturalized,  his  location  is  good  from 
its  original  date.— Osterman  v.  Baldwin,  6  Wall.  122,  18  L.  Ed. 
730,  732,  29  L.  D.  164;  Shea  v.  Nilima,  133  P.  209,  66 
C.  C.  A.  263. 

In  the  last  cited  case  a  prospecting  contract  between  two 
parties,  both  aliens,  was  enforced. 

In  the  Manuel  case  a  citizen  had  located  and  sold  to  an  alien. 
The  alien  had  applied  for  patent  and  was  adversed.  Pending 
trial  he  became  naturalized,  he  being  a  minor  immigrant 
entitled  to  take  out  papers  without  previous  declaration  of 
intention,  and  the  Court  held  that  the  effect  of  naturalization 
was  retroactive,  made  his  claim  valid  and  defeated  the  adverse. 

Children  of  Aliens. 

There  is  a  common  impression  that  the  naturalization  of  the 
father  operates  to  make  citizens  of  all  his  children  who  came 
to  the  United  States  under  twenty-one  years  of  age ;  but  this 
is  the  case  only  as  to  such  children  who  were  under  that  age 
at  the  date  of  the  father's  naturalization  papers. — B.  S.  Sec. 
2172,  34  St.  L.  1229. 

An  Alien  May  Take  Title  by  Descent  and  Hold  the  Claim 

against  all  the  world  except  the  United  States. — Billings  v. 
Aspen  Co.,  51  F.  388,  2  C.  C.  A.  252,  52  F.  250,  3  C.  C.  A.  69; 
Lohmann  v.  Helmer,  104  F.  178. 


590  ALIENS. 

Pleading  and  Proof  of  Citizenship. 

Except  in  adverse  claim  cases  it  need  be  neither  alleged  nor 
proved.— Farm  v.  Kellogg,  117  Cal.  484,  49  P.  708 ;  Buckley 
v.  Fox,  8  Ida.  248,  67  P.  659 ;  Gruwell  v.  Rocca,  141  Cal.  417. 
74  P.  1028.  .It  may  be  proved  when  essential  though  not 
averred.— Altoona  Co.  v.  Integral  Co.,  114  Cal.  100,  45  P.  1047. 
Where  no  issue  is  made  on  it,  it  can  not  be  controverted. — 
Jackson  v.  Dines,  13  Colo.  90,  21  P.  918 ;  Sherlock  v.  Leighton, 
9  Wyo.  297,  63  P.  580,  934.. 

Indirect  proof  by  circumstances  has  been  allowed. — Strick- 
ley  v.  Hill,  22  Utah  257,  83  Am.  St.  Rep.  786,  62  P.  893,  20 
M.  R.  722,  and  in  Jantzon  v.  Arizona  Co.,  3  Ariz.  6,  20  P.  93. 
the  broad  view  was  expressed,  and  as  we  have  always  believed 
correctly  expressed,  that  (in  judicial  as  distinguished  from 
departmental  proceedings)  a  presumption  exists  in  favor  of 
the  citizenship  of  a  resident  locator. 

The  point  of  alienage  must  be  raised  on  the  trial  below. — 
O'Reilly  v.  Campbell,  116  U.  S.  418,  420,  29  L.  Ed.  669,  6 
Sup.  Ct.  421 ;  Dean  v.  Omaha  Co.,  21  Wyo.  133,  128  P.  881, 
129  P.  1023. 

Where  a  party  is  native  born  his  own  statement  proves  his 
citizenship.  Where  naturalization  or  declaration  of  intention 
is  in  issue  the  proper  proof  is  the  production  of  a  certified 
copy  of  the  record,  but  there  are  instances  where  this  strict- 
ness is  not  insisted  on. — Wood  v.  Aspen  Co.,  36  F.  25 ;  Provi- 
dence Co.  v.  Burke,  6  Ariz.  323,  57  P.  641,  19  M.  R.  625. 

In  the  Land  Office  upon  application  for  patent  and  upon 
adverse  claim  the  proof  is  by  affidavit  and  like  proof  is  held 
good  in  the  suit  supporting  the  adverse. — Hammer  v.  Garfield 
Co.,  16  M.  R.  125, 130  U.  S.  291,  32  L.  Ed.  964,  9  Sup.  Ct.  548 : 
O'Reilly  v.  Campbell,  116  U.  S.  418,  420,  29  L.  Ed.  669,  6 
Sup.  Ct.  421. 

Citizenship  of  the  stockholders  of  an  American  corporation 
need  not  be  proved  and  issue  can  not  be  taken  on  this  point. 
—Doe  v.  Waterloo  Co.,  70  F.  455,  456,  17  C.  C.  A.  190,  18 
M.  R.  265. 


MEXICAN  GRANT.  391 

The  Federal  Alien  Acts  Relating  to  Territories  Have  Now 

no  force  except  in  the  Territory  of  Alaska.  They  add  little 
or  nothing  to  the  general  restrictions  already  noted,  limiting 
the  right  to  locate  and  purchase  mining  claims  to  citizens  and 
declarants.  29  Stat.  L.  618,  Cornp.  Stats.  (1911)  p.  1168. 

Chinese. 

Idaho,  Nevada  and  Oregon  attempt  restrictions  on  owner- 
ship by  Mongolian  aliens,  but  such  discriminations  are  subject 
to  treaties  of  the  United  States.  A  lease  to  Chinamen  was  held 
good  in  Ah  Kle  v.  McLean,  3  Ida.  538,  32  P.  200. 


MEXICAN  GRANT. 


The  three  cessions  of  Mexican  territory  to  the  United  States 
were  by  the  treaty  of  Guadaloupe  Hidalgo,  Feb.  2,  1848,  the 
Gadsden  purchase  in  1853  and  the  grant  by  the  State  of  Texas 
in  1850,  of  all  its  claims  to  territory  outside  of  its  present 
boundaries.  It  had  been  the  policy  of  the  Spanish  and 
Mexican  governments  to  allow  the  governors  of  the  outlying 
provinces  to  pass  title  to  large  tracts  for  colonization  purposes 
but  limited  to  eleven  square  leagues.  Such  private  cessions  of 
land  are  recognized  by  all  the  treaties  as  well  as  by  the  modern 
law  of  conquest,  and  they  have  been  variously  confirmed  by 
special  acts,  by  patents,  or  by  the  adjudication  of  the  Court  of 
Land  Claims.  Many  of  the  so-called  grants  were  of  an 
inchoate  character — what  we  would  call  licenses  or  equities  not 
ripened  into  grants  proper.  But  whatever  their  status  the 
United  States  is  understood  to  be  bound  as  fully  as  was  the 
original  government. 

In  Moore  v.  Smaw,  12  M.  R.  418,  17  Cal.  199,  79  Am.  Dec. 
.123,  where  the  subject  of  mineral  rights  in  grants  was  fully 
discussed,  it  was  held  that  no  interest  in  minerals  passed  by 
the  grant  of  the  Mexican  government  without  express  words 


392  MEXICAN  GRANT. 

designating  them  and  that  at  the  date  of  the  cession  of 
California  to  the  United  States  they  were  the  property  of  the 
Mexican  government  and  passed  by  the  cession  to  the  United 
States ;  but  that  a  patent  from  the  United  States,  in  confirma- 
tion of  such  grant,  making  no  reservation  of  the  minerals, 
invested  the  patentee  with  the  ownership  of  the  minerals. 

In  Fremont  v.  U.  8.,  17  How.  (58  U.  S.)  542,  565,  15  L.  Ed. 
241,  249,  it  was  held  that  the  discovery  of  gold  or  silver  did 
not,  under  the  mining  laws  of  Mexico,  destroy  the  title  of  the 
individual  holding  the  grant  to  the  surface,  without  passing 
upon  the  rights  of  the  government  or  of  the  discoverer,  in  such 
minerals. 

The  Moore  case  followed  without  qualification  in  Fremont  v. 
Seals,  11  M.  R.  632,  18  Cal.  433,  and  Ah  Hee  v.  Crippen,  10 
M.  R.  367,  19  Cal.  491,  492,  remained  for  many  years  unques- 
tioned, but  in  U.  8.  v.  San  Pedro  Co.,  4  N.  M.  225,  17  P.  337, 
the  Supreme  Court  of  New  Mexico  held  that  a  confirmation  of 
the  grant  by  patent  or  statute  did  not  pass  the  minerals.  The 
facts  in  this  case  for  the  mineral  claimant  were  very  strong, 
as  the  mines  on  that  grant  had  been,  prior  to  the  cession,  of 
known  value  and  denounceable,  if  not  actually  denounced 
under  Mexican  law. 

A  Mexican  grant  seems  to  be  inadmissible  as  proof  of  title 
till  confirmed  by  Act  of  Congress. — Astiazaran  v.  Santa  Rita 
Co.,  3  Ariz.  20,  20  P.  189,  148  U.  S.  80,  37  L.  Ed.  376,  13 
Sup.  Ct.  457.  But  confirmation  may  be  complete  without 
patent.— Shaw  v.  Kellogg,  170  U.  S.  312,  42  L.  Ed.  1050,  18 
Sup.  Ct.  632.  And  the  action  of  Congress  is  not  subject  to 
judicial  review. — Catron  v.  Laughlin,  11  N.  M.  604,  72  P.  26. 

A  mining  location  may  be  made  on  an  unconfirmed  Mexican 
grant.  Such  land  is  not  reserved  against  entry. — Loci-hart  v. 
Witts,  9  N.  M.  344,  54  P.  336,  19  M.  R.  497;  Aff'd  Lockhart  v. 
Johnson,  181  U.  s!  516,  45  L.  Ed.  979,  21  Sup.  Ct.  665. 

In  Gildersleeve  v.  New  Mexico  Co.,  a  confirmed  Mexican. 
grant  was  upheld  on  the  ground  of  laches  of  the  complainant. 
—161  U.  S.  573,  40  L.  Ed.  812,  16  Sup.  Ct.  663. 


MINING  CORPORATIONS,  DOMESTIC.  393 

MINING  CORPORATIONS,  DOMESTIC. 


A  Corporation  Is  an  "Association  of  Persons" 
within  the  meaning  of  the  U.  S.  Mining  Acts. — U.  S.  v.  Trini- 
dad Co.,  137  U.  S.  160,  34  L.  Ed.  640,  11  Sup.  Ct.  57. 

*Any  three  or  more  persons  are  authorized  to  file  their 
certificate  of  incorporation  under  the  Colorado  Incorporation 
Act. — R.  S.  Sees.  845-999,  for  purposes  of  mining  or  construc- 
tion of  ditches  or  flumes;  to  run  tunnels;  or  in  fact  "for  any 
lawful  purpose,"  but  there  are  special  provisions  in  the  cor- 
poration chapter  which  refer  only  to  mining,  ore  reduction, 
and  tunneling  companies — and  other  special  provisions  con- 
cerning ditch,  flume  and  pipe  line  companies. — Sees.  988,  998. 

Number  of  Directors. 

By  Act  of  1915,  p.  173,  amending  R.  S.  Colo.  Sec.  865,  the 
number  of  directors  must  not  be  less  than  three  nor  more  than 
thirteen. 

The  Par  Value  of  Shares  May  Be  in  Any  Sum  Provided  for 

in  the  articles  but  can  not  exceed  one  hundred  dollars,  and  the 
shares  may  be  issued  payable  in  instalments. — Sec.  850,  Acts 
of  1915,  p.  172. 

The  directors  have  power  to  sell  the  stock  of  the  company 
at  less  than  par. — Mosher  v.  Sinnott,  20  Colo.  App.  454,  79 
P.  742. 

Rights  of  Stockholders. 

Any  stockholder  has  a  right  to  inspect  the  books  of  the  cor- 
poration.— Sec.  869.  And  the  holders  of  fifteen  per  cent  may 
demand  a  written  statement. — Sec.  877. 


*  These  details  vary  in  the  several  States,  but  each  allows  of  incorpora- 
tion upon  practically  the  same  terms  and  upon  compliance  with  substan- 
tially the  same  forms  as  in  Colorado.  To  state  each  instance  where  they 
vary  would  be  beyond  the  plan  and  intended  size  of  this  work.  Nor  is  it 
advisable  even  where  the  most  complete  local  forms  and  directions  are 
given  in  any  book  to  attempt  to  write  any  such  document  as  a  corporate 
charter  without  professional  counsel. 


394  MINING  CORPORATIONS,  DOMESTIC. 

By  statute  in  some  States,  stockholders  may  inspect  the 
mine.  Such  a  statute  is  construed  in  Hobbs  v.  Tom  Reed  Co., 
164  Cal.  497,  43  L.  R.  A.  (N.  S.)  1112, 129  P.  781. 

The  Term  of  Existence  Can  Not  Exceed  Twenty  Years. 
—Sec.  847.  But  may  be  renewed.— Sec.  891. 

Stock  Paid  in  Lands. 

Any  such  company  may  issue  stock  in  payment  for  mines, 
such  stock  to  be  treated  as  paid-up  stock. — Sec.  851. 

Where  stock  is  issued  upon  excessive  over- valuation  the 
holder  may  be  held  personally  liable. — Kelly  v.  Clark  (Fourth 
Co.),  21  Mont.  291,  69  Am.  St.  Rep.  668,  42  L.  R.  A.  621,  53 
P.  959,  19  M.  R.  431;  compare  DuPont  v.  Tilden,  42  F.  87. 

No  personal  liability  is  imposed  upon  stockholders  for  debts, 
except  to  the  extent  of  unpaid  stock  held  by  them. — Sec.  873. 
Directors  and  officers  become  liable  for  failure  to  make  and 
file  an  annual  report;  or  for  declaring  fraudulent  dividends. 
—Sees.  872,  911. 

Sale  to  corporation  of  claims  located  without  discoveries 
held  to  be  without  consideration  and  the  stockholders  person- 
ally liable.— Buck  v.  Jones,  18  Colo.  App.  250,  70  P.  951, 
22  M.  R.  467.  But  this  is  not  the  decision  of  a  Court  of  last 
resort  and  it  overlooks  the  fact  that  a  claim  staked  to  cover 
the  supposed  extension  of  a  blind  lode  or  a  placer  claim  carry- 
ing a  heavy  overburden  may  have  real  and  even  great 
pecuniary  value,  although  not  yet  held  by  valid  possessory 
title. 

Annual  Meeting's  of  Stockholders  Are  Provided  for  by 

statute,  the  by-laws  fixing  the  time  and  place.  They  can  not 
be  lawfully  held  out  of  the  State. — Jones  v.  Pearl  M.  Co.,  20 
Colo.  417,  38  P.  700. 

The  Colorado  Act  (1915  p.  173)  requires  notice  to  be  pub- 
lished not  less  than  30  days  previous  to  the  meeting,  in  a 


MINING   CORPORATIONS,  DOMESTIC.  395 

newspaper  published  where  the  principal  office  is  kept,  and 
thirty  days'  notice  to  each  stockholder. 

Mortgage. 

In  Colorado  a  mining  company  is  forbidden  to  mortgage  its 
property  except  by  a  majority  vote  of  its  stockholders. — 
Sec.  865. 

The  amendment  of  1915,  p.  173,  allows  a  five  years'  lease 
without  such  assent.  Before  such  amendment  a  lease  for  that 
period  had  been  held  an  incumbrance  under  this  section  in 
Westerlund  v.  Black  Bear  Co.,  203  F.  599, 121  C.  C.  A.  627. 

Other  states  have  similar  limitations.  Either  previous 
assent  or  subsequent  ratification  answers  the  demands  of  such 
statute.— Lacy  v.  Gunn,  144  Cal.  511,  78  P.  30 ;  Royal  M.  Co. 
v.  Royal  Mines  Co.,  157  Cal.  737,  137  Am.  St.  Rep.  165,  110 
P.  123.  A  party  holding  a  mortgage  without  such  assent  or 
ratification  has  no  standing  in  Court. — Bennett  v.  Red  Cloud 
Co.,  14  Cal.  App.  728,  113  P.  119.  But  only  the  stockholders 
can  defend  against  a  mortgage  issued  in  violation  of  this  pro- 
vision.—Firestone  C.  Co.  v.  McKissick,  24  Colo.  App.  294,  134 
P.  147. 

Corporate  Deed. 

The  seal  of  the  company  is  prima  facie  evidence  that  it  was 
affixed  by  corporate  authority. — Union  Gold  M.  Co.  v.  Bank, 
2  Colo.  226.  To  render  a  conveyance  of  real  property  unim- 
peachable it  should  be  authorized  by  the  board  of  directors, 
preceded  by  action  of  the  stockholders  at  a  meeting  called  for 
that  purpose.  But  the  deed  may  be  valid  without  such  min- 
utes.— RuUe  Co.  v.  Princess  Co.,  31  Colo.  158,  71  P.  1121,  22 
M.  R.  569. 

Seal. 

A  corporation  may  be  bound  by  a  scroll  seal. — G.  V.  B.  Min. 
Co.  v.  First  Nat.  Bank,  95  F.  23,  36  C.  C.  A.  633.  And  may 
adopt  new  seal  when  its  president  withholds  the  old  one. — 
Socorro  Cf».  r  Preston,  17  Misc.  220,  40  N.  Y.  Supp.  1040. 


396  MINING  CORPORATIONS,  DOMESTIC. 

ARTICLES  OF  INCORPORATION — MINING   COMPANY. 

WHEREAS,  Arthur  Howe  Carpenter,  Elberi  F.  Fitzgerald  and  Frank  W, 
Ilou-bert,  all  of  the  City  and  County  of  Denver,  State  of  Colorado,  have 
associated  themselves  together  for  purposes  of  incorporation  under  the 
General  Incorporation  Acts  of  the  State  of  Colorado,  they  do  therefore 
make,  sign  and  acknowledge  these  duplicate f certificates  in  writing,  which 
when  filed,  shall  constitute  the  Articles  of  Incorporat>n  of  Tlie  Ytllow 
Bug  Mining  Company. 

ARTICLE.  1.  The  name  of  said  company  shall  be  The  Yellow  Dug 
Mining  Company. 

ARTICLE  2.  The  objects  for  which  said  company  is  created  are  to 
acquire,  hold,  work  and  operate  mines  and  lodes  bearing  gold,  silver  and 
other  associated  minerals  in  the  County  of  San  Miguel  in  said  State  of 
Colorado;  and  to  acquire,  own  and  use  water,  water  rights  and  mills 
incident  to  the  extraction,  treatment  and  reduction  of  the  ores  of  said 
metals  and,  from  time  to  time,  to  sell  and  convey  such  mines,  mills,  water 
rights  and  ores,  and  to  do  all  things  incident  to  the  general  business  of 
mining  and  to  treat  and  market  the  product  of  the  mines. 

ARTICLE  3.  The  term  of  existence  of  said  company  shall  be  twenty 
years. 

ARTICLE  4.  The  capital  stock  of  said  company  shall  be  one  hundred 
thousand  dollars  divided  into  one  hundred  thousand  shares  of  one  dollar 
each. 

ARTICLE  5.  The  number  of  directors  of  said  company  shall  be  three, 
and  the  names  of  those  who  shall  manage  the  affairs  of  the  company  for 
the  first  year  of  its  existence  are  Arthur  Howe  Carpenter,  Elbert  F. 
Fitzgerald  and  Frank  W.  Howbert. 

ARTICLE  6.  The  principal  office  of  said  company  shall  be  kept  at 
Placerville  in  said  County  and  the  principal  business  of  said  company 
shall  be  carried  on  in  said  County  of  San  Miguel. 

ARTICLE  7.  The  stock  of  said  company  shall  be  non-assessable,  and 
cumulative  voting  of  stock  shall  (not)  be  allowed. — Act  of  1915. 

ARTICLE  8.  The  board  of  directors  shall  have  power  to  make  such  pru- 
dential by-laws  as  they  may  deem  proper  for  the  management  of  the 
affairs  of  the  company,  not  inconsistent  with  the  laws  of  this  State,  for 
the  purpose  of  carrying  on  all  kinds  of  business  within  the  objects  and 
purposes  of  such  company. 

In  witness  whereof,  the  said  incorporators  have  hereunto  set  their 
hands  and  seals  this  first  day  of  January,  A.  D.  1916. 

ARTHUR  HOWE  CARPENTER.      [SEAL.] 
ELBERT  F.  FITZGERALD.  [SEAL.] 

FRANK  W.  HOWBERT.  [SEAL.] 


MINING  CORPORATIONS,  DOMESTIC.  397 

STATE  OF  COLORADO,  City  and  County  of  Denver:  ss. 

I,  Duncan  W.  Miller,  a  notary  public  in  and  for  said  County,  do  hereby 
certify  that  Arthur  Howe  Carpenter,  Elbert  F.  Fitzgerald  and  Frank  W. 
Ilowbert,  who  are  personally  known  to  me  to  be  the  same  persons  described 
in,  and  who  executed  the  within  duplicate  Articles  of  Incorporation, 
appeared  before  me  this  day  and  personally  acknowledged  that  they 
signed,  sealed  and  delivered  the  same  as  their  free  and  voluntary  act 
and  deed. 

"Witness  my  hand  and  notarial  seal  this  first  day  of  January,  A.  D. 
1916.  .  Duncan  W.  Miller, 

[SEAL.]  Notary  Public. 

My  commission  expires  Oct.  1,  1917. 

Where  it  is  desired  to  transact  part  of  the  business  out  of 
the  State  the  certificate  must  so  state : 

ARTICLE  9.  A  part  of  the  business  of  said  company  shall  be  carried  on 
in  Ecldcy,  County  of  Luzerne,  Commonwealth  of  Pcnnsylrnnia,  and  the 
principal  office  of  said  company  out  of  the  State  shall  be  at  said  Ecldey, 
at  which  office  meetings  of  directors  may  be  held. 

The  first  seven  articles  in  the  above  form  contain  all  of  the 
statutory  requirements.  Article  8,  in  regard  to  the  by-laws, 
is  necessary  if  it  is  intended  that  the  directors  instead  of  the 
stockholders,  shall  make  the  by-laws. — R.  S.  Sec.  853. 

One  of  the  said  duplicates  is  to  be  filed  with  the  Recorder  of 
the  proper  county,  and  one  with  the  Secretary  of  State,  and  if 
the  business  is  to  be  carried  on  in  more  than  one  county,  the 
word  duplicate  should  not  be  used,  as  there  must  be  an  original 
for  each  county  as  well  as  for  the  Secretary  of  State. 

Assessable  or  Non-Assessable. 

The  statute  provides  for  assessments  upon  shares,  where  by 
the  charter  the  stock  is  made  assessable,  and  requires  that 
whether  the  stock  shall  be  assessable  or  non-assessable  shall  be 
stated  in  the  articles;  and  each  certificate  of  stock  "shall  have 
plainly  printed  on  the  face  thereof  the  word  'assessable'  or 
'non-assessable'  as  the  case  may  be." 

Where,  after  organization  is  complete,  a  company  desires  to 
extend  its  business  into  other  counties,  it  may  do  so  without 
amending  charter,  by  filing  certified  copy  from  the  Secretary 
of  State 's  office  with  the  Recorder  of  the  new  county. 


398  MINING  CORPORATIONS,  DOMESTIC. 

On  filing  the  articles  a  copy  certified  by  the  Secretary  of 
State  should  be  procured  and  preserved  as  the  legal  voucher 
for  corporate  existence.  At  the  same  time  the  Secretary  of 
State  issues  his  "Certificate  of  Authority"  and  thereupon 
should  be  called  the  organization  meeting,  to  be  attended  by  a 
majority  of  the  original  board  of  directors  (by  custom  the 
same  persons  as  the  incorporators,  though  not  necessarily  so). 
This  organization  meeting,  so-called,  is  really  the  first  regular 
meeting  of  the  board  of  directors,  and  at  such*  meeting  the 
articles  filed  should  be  formally  accepted. 

ORGANIZATION  MEETING. 

Record  of  the  first  meeting  of  the  Board  of  Directors  of  The  Yellow 
$ug  Mining  Company,  at  Placerville,  Colorado,  January  7,  1916. 

At  a  meeting  of  the  persons  named  in  the  articles  of  said  company, 
there  being  present  Arthur  Howe  Carpenter,  Elbert  F.  Fitzgerald  and 
Frank  W.  Hewlett. 

On  motion  Arthur  Howe  Carpenter  was  elected  chairman  and  Frank 
W.  Hoivbert  secretary  pro  tern. 

On  motion  the  Articles  of  Incorporation  as  filed  in  the  office  of  the 
Secretary  of  State  and  in  the  office  of  the  County  Clerk  of  San  Miguel 
County,  were  accepted  as  the  articles  of  incorporation,  or  charter  of  said 
company. 

On  ballot  taken  Arthur  Howe  Carpenter  was  elected  president  of  the 
company,  Elbert  F.  Fitzgerald  was  elected  vice-president,  Frank  W.  How- 
bert  was  elected  treasurer,  Albert  B.  Eoeder  was  elected  secretary,  and 
James  A.  Ownbey  was  elected  superintendent. 

On  motion  the  following  by-laws  were  adopted: 

BY-LAWS. 

[The  by-laws  below  will  be  found,  in  general,  sufficient;  but  each 
by-law  should  be  reviewed  and  such  changes  made  as  may  be  needed  to 
cover  special  plans  of  the  incorporators.] 

I. OFFICERS. 

The  officers  of  this  company  shall  consist  of  a  President,  Vice-Presi- 
dent, Secretary,  Treasurer,  and  Superintendent,  who  shall  be  chosen  by 
the  Directors  at  their  first  meeting  following  the  annual  meeting  of  the 
stockholders  in  each  year.  They  shall  be  elected  from  the  Board  of 
Directors,  except  the  Secretary  and  Superintendent,  who  may  or  may  not 
be  Directors.  Said  officers  shall  hold  their  respective  offices  until  their 
successors  are  appointed  and  enter  upon  the  duties  of  their  offices. 


MINING  CORPORATIONS,  DOMESTIC.  399 

Vacancies  among  the  Directors  may  be  filled  at  any  meeting  of  the  Board 
of  Directors,  by  ballot. 

n. — DUTIES  OF  PRESIDENT. 

It  shall  be  the  duty  of  the  President  to  preside  at  all  meetings  of  the 
Directors,  and  to  sign  all  bonds,  deeds,  agreements  or  other  instruments 
in  writing,  made  or  entered  into  by  or  on  behalf  of  the  corporation;  to 
sign  ail  certificates  of  stock,  and  all  orders  for  money  on  the  Treasurer, 
and  in  general  perform  all  acts  incident  to  his  office. 

in. — DUTY  OF  VICE-PRESIDENT. 

It  shall  be  the  duty  of  the  Vice-President  to  perform  all  such  functions 
as  belong  to  the  office  of  President  in  the  absence  of  the  President. 

IV. — DUTIES   OF   SECRET  ART. 

The  Secretary  shall  give  due  notice  of  all  meetings  of  stockholders,  and 
of  the  Board  of  Directors;  shall  prepare  and  keep  proper  books  of  record 
and  of  account  for  the  business  of  the  company,  and  such  other  books  as 
may  be  required  by  law  or  the  Directors  may  prescribe.  He  shall  counter- 
sign and  register  all  certificates  of  stock,  and  other  documents  requiring 
the  signature  of  the  President,  attaching  the  corporate  seal  of  the  company 
to  all  instruments  requiring  seal,  and  perform  all  such  other  duties  as  are 
incident  to  his  office.  A  suitable  compensation,  to  be  determined  by  the 
Directors,  shall  be  allowed  the  Secretary  for  his  services.  lie  shall  be  the 
custodian  of  the  corporate  seal. 

V. — DUTIES  OF  TREASURES. 

The  Treasurer  shall  be  the  custodian  of  the  funds  until  the  same  be 
disposed  of  by  order  of  the  Board  of  Directors.  He  shall  give  bond  satis- 
factory to  the  Board  of  Directors,  for  the  faithful  performance  of  his 
duties.  No  money  shall  be  paid  out  by  the  Treasurer  except  on  the  order 
of  the  President  or  Superintendent,  countersigned  by  the  Secretary. 

VI. — DUTIES  OF  SUPERINTENDENT. 

The  Superintendent  shall  have  control  of  the  working  and  developing 
of  the  company's  mining  property;  shall  report  to  the  Board  of  Directors, 
for  their  approval,  all  contemplated  work,  and  after  such  approval,  shall 
have  full  power  to  contract  said  work.  All  expenses  incurred  by  the 
Superintendent  in  the  working  and  management  of  the  company's  prop- 
erty shall  be  borne  by  the  company.  A  suitable  compensation,  to  be 
determined  by  the  Board  of  Directors,  shall  be  allo\yed  him  for  hia 
services. 

Vn. — BOARD  OF  DIRECTORS. 

The  Board  of  Directors  shall  consist  of  three  members,  always  includ- 
ing the  President,  Vice-President  and  Treasurer.  It  shall  be  the  duty  of 
the  Board  to  exercise  general  supervision  over  the  affairs  of  the  company; 


400  MINING  CORPORATIONS,  DOMESTIC. 

to  receive  and  pass  upon  the  reports  of  the  Secretary,  Treasurer  an.l 
Superintendent,  to  audit  all  bills  and  accounts  against  the  company,  an.l 
to  direct  the  Secretary  in  correspondence. 

VIII. — ANNUAL  REPORTS. 

The  Board  of  Directors  shall  cause  its  officers  to  make  a  full  exhibit 
of  their  several  departments  and  to  prepare  reports  for  submission  to  the 
annual  meeting  of  stockholders. 

IX. — DIRECTORS '   MEETINGS. 

The  Board  of  Directors  shall  meet  at  such  times  as  they  shall  from 
time  to  time  determine,  and  a  meeting  of  the  Board  may  at  any  time  be 
called  by  the  President  or  any  two  members  of  the  Board  by  causing  per- 
sonal notice  to  be  served  upon  the  Directors  at  least  one  day  before  the 
date  of  such  proposed  meeting.  Two  of  the  Directors  shall  constitute  a 
quorum  for  the  transaction  of  business.  All  Directors  and  officers  must 
be  stockholders. 

X. — STOCKHOLDERS '   MEETING. 

The  first  annual  meeting  of  the  company  shall  be  held  at  the  office  of 
the  company  at  Placerville,  at  10  o  'clock  A.  M.,  on  the  second  Tuesday  in 
January,  A.  D.  1916,  and  on  the  same  Tuesday  of  each  succeeding  year. 
If  omitted,  the  Directors  shall  hold  over  until  their  successors  are  ap- 
pointed. Special  meetings  may  be  called  by  the  Board  of  Directors,  or  by 
one-tenth  in  amount  of  all  the  stock  held.  Such  published  notice  and  per- 
sonal notice  by  mail  as  may  be  required  by  law,  shall  be  given  of  each 
meeting  (except  adjourned  meetings)  and  the  object  of  the  meeting  shall 
be  stated  in  the  notice.  Stockholders  may  be  represented  by  proxies,  which 
must  be  exhibited  for  inspection  to  the  meeting. — See  See.  865.  Amended 
1915,  p.  173. 

XI. — CERTIFICATE  OP   SHARES. 

The  subscribers -to  the  capital  stock  of  this  company  shall  be  entitled 
to  certificates  of  their  shares,  duly  signed  by  the  President  and  counter- 
signed by  the  Secretary.  The  certificates  of  stock  shall  be  numbered  and 
registered  as  they  are  issued.  Transfers  of  stock  shall  only  be  made  on 
the  books  of  the  company,  either  in  person  or  by  attorney,  and  the  pos- 
session of  stock  shall  not  be  regarded  as  evidence  of  ownership  of  the 
same,  unless  it  appears  upon  the  stock  books  of  the  company  that  said 
certificate  was  issued  or  duly  transferred  to  the  holder  of  the  same. 

XII. — DEBTS. 

No  debt  shall  be  contracted  against  the  company  except  by  order  of 
the  Board  of  Directors. 

XIII. — DIVIDENDS. 

Dividends  shall  be  made  not  in  excess  of  the  net  earnings  of  the  com- 
pany at  the  close  of  every  fiscal  year,  which  shall  be  on  the  thirty-first 
day  of  December  of  every  year;  or  oftener  as  the  Board  of  Directors  may 
see  fit. 


MINING  COEPOEATIONS,  DOMESTIC.  401 

XIV. — CORPORATE  SEAL. 

This  company  adopts  as  its  corporate  seal,  the  device  described  as  fol- 
lows: A  pick  and  shovel  crossed,  surrounded  by  the  name  of  the  company. 

XV. — AMENDMENTS. 

These  by-laws  may  be  changed,  amended  or  revoked  at  any  time,  by  a 
two-thirds  vote  of  the  Board  of  Directors. 

The  charter  and  by-laws  being  adopted,  and  the  officers 
elected,  the  organization  of  the  corporation  is  complete,  and 
the  minutes  proceed  to  note  business  as  it  may  be  transacted. 

Reports  and  Certificates  Required. 

After  payment  of  the  last  instalment  of  capital  stock  the 
president  and  a  majority  of  the  board  of  directors  are  required 
by  Sec.  875  to  record  a  certificate  in  the  office  of  the  Secretary 
of  State  as  follows: 

CERTIFICATE  OF  FULL  PAID  STOCK. 

STATE  OF  COLORADO,  County  of  San  Miguel:  ss. 

The  undersigned,  Arthur  H.  Carpenter,  President,  and  Elbert  F.  Fitz- 
gerald, Director,  constituting  a  majority  of  the  Directors  of  The  Yellow 
Bug  Mining  Company,  do  hereby  certify,  in  accordance  with  Section  875 
of  the  Kevised  Statutes  of  said  State,  that  the  amount  of  the  capital 
stock  of  said  company,  as  fixed  and  limited  by  its  Articles  of  Incorpora- 
tion, is  $100,000,  and  that  the  whole  amount  of  said  stock  has  been  paid 
in.  That  $10,000  thereof  was  paid  in  cash  and  $90,000  was  paid  for  by 
the  purchase  of  mining  property. 

Witness  our  hands  this  5th  day  of  February,  A.  D.  1916. 

ARTHUR  H.  CARPENTER,  President. 
ELBERT   F.  FITZGERALD,  Director. 
STATE  OF  COLORADO,  County  of  San  Miguel:  ss. 

Arthur  H.  Carpenter  and  Elbert  F.  Fitzgerald,  being  dulyVsworn,  say 
that  they  are  the  officers  named  in  the  foregoing  certificate,  and  constitute 
a  majority  of  the  Board  of  Directors  of  said  company;  that  they  have 
heard  said  certificate  read  and  know  the  contents  thereof,  and  that  the 
matters  and  things  therein  stated  are  correct  and  true. 

ARTHUR  H.  CARPENTER. 
ELBERT  F.  FITZGERALD. 
Sworn  and  subscribed  before  me  this  fifth  day  of  February,  A.  D.  1916. 

Curtis  L.  Greenwood, 

[SEAL.]  Notary  Public. 

My  commission  expires  May  1,  1917. 


402  MINING  CORPORATIONS,  DOMESTIC. 

A  copy  of  said  certificate  is  also  to  be  filed  and  recorded  in 
the  Recorder's  office  of  each  county  where  business  is  done. 

It  is  held  that  when  the  capital  stock  is  fully  paid  up  it  is 
the  duty  of  the  officers  to  made  and  record  such  certificate. — 
Austin  v.  Berlin,  13  Colo.  198,  200,  22  P.  433. 

Annual  Report. 

By  Colorado  R.  S.  Sec.  911  an  annual  report  is  required  of 
all  corporations  to  be  filed  within  sixty  days  from  January  1. 
The  penalty  for  failure  to  file  is  personal  liability  of  all  officers 
and  directors.  Special  details  are  demanded  of  mining  and 
ditch  companies  which  are  scheduled  in  printed  blanks  fur- 
nished on  request  from  the  Secretary  of  State's  office. 

Such  report  must  be  signed  by  the  president  and  verified  by 
the  president  and  secretary  and  the  corporate  seal  attached. 

"Where  the  stock  has  been  paid  up  by  purchase  of  the  mine, 
the  certificate  must  so  state. 

ARTICLES  OF  INCORPORATION — DITCH  COMPANY. 

(Preamble  same  as  p.  396.) 

ARTICLE  1.  The  name  of  said  company  shall  be  "The  Deluge  Ditch 
Company. ' ' 

ARTICLE  2.  The  objects  for  which  said  company  is  created  are  to 
construct  a  ditch  and  keep  and  maintain  the  same  from  the  stream  known 
as  Eoaring  ForTc  of  the  Grand,  tapping  such  stream  at  a  point  about  one- 
quarter  mile  above  the  Jones  ranch,  and  about  one  hundred  yards  below 
Eagle  Cliff,  and  fifty  feet  northeast  from  lone  pine  tree  blazed  D.  D.; 
the  line  of  said  ditch  running  thence  (give  course  and  distance  of  survey 
if  possible,  so  as  to  describe  "the  line  of  said  ditch  as  near  as  may  be"). 
The  water  of  said  ditch  to  be  used  and  sold  for  placer  mining. 

ARTICLED  3,  4,  5,  6,  8  and  9  and  acknowledgment  (same  form  as  on 
p.  396.) 

ARTICLE  7.  The  stock  of  said  company  shall  be  assessable,  upon 
majority  vote  at  stockholders'  meeting,  as  required  by  law. 

The  stream  tapped,  head  of  ditch,  line  of  ditch  and  intended 
use  of  water  must  always  be  stated;  also  the  location  of  the 
reservoir  if  a  reservoir  is  to  be  constructed. 

Any  surplus  Avater  they  are  compelled  to  keep  for  sale,  at 
rates  fixed  by  County  Commissioners. 


MINING  CORPORATIONS,  DOMESTIC.  403 

SMELTING  AND  ORE-SAMPLING  COMPANIES. 

The  following  Articles  stating  the  purposes  of  organization 
are  taken  from  records  filed  by  operating  companies.  The 
other  Articles  for  such  or  other  like  companies  should  be  sub- 
stantially in  the  above  form,  always  observing  that  the  article 
(No.  7)  referring  to  assessability  of  stock,  and  the  require- 
ment to  print  "Assessable"  or  " Non- Assessable "  on  the  face 
of  the  stock  certificate  is  confined  to  ore-reducing,  mining  and 
tunneling  companies. — Sec.  975. 

(The  Pueblo  Smelting  and  Refining  Company.) 

ARTICLE  2.  The  objects  for  which  the  said  company  hereby  formed  is 
created  shall  be:  To  buy  and  sell  ores,  metals  and  other  furnace  prod- 
ucts; to  smelt  and  reduce  lead,  gold,  silver,  copper  and  other  ores,  and 
refine  bullion;  manufacture  lead,  copper  and  iron  products  and  articles 
of  merchandise,  and  do  a  general  smelting,  refining  and  metallurgical 
business;  to  erect  necessary  buildings,  mills,  machinery  and  appliances; 
purchase  materials  for  the  proper  working  thereof;  and  do  any  and  all 
other  things  necessary,  proper  or  requisite  to  carry  into  effect  the  objects 
aforesaid. 

(The  Omaha  and  Grant  Smelting  and  Refining  Company.) 
ARTICLE  2.  The  nature  of  the  business  to  be  transacted  shall  be: 
1st. — The  purchase,  lease,  erection  and  operation  of  smelting  and  refin- 
ing works,  and  the  smelting  and  refining  therein  of  gold,  silver,  and  other 
valuable  ores  and  metals. 

2nd. — The  purchase,  lease  and  operation  of  mines  and  mining  prop- 
erty, for  the  purpose  of  obtaining  said  gold,  silver  and  other  valuable 
ores. 

3rd. — The  purchase  of  gold,  silver  and  other  valuable  ores  and  metals 
for  smelting  and  refining,  and  the  sale  and  disposal  of  the  products 
thereof. 

4th. — To  acquire  by  donation,  purchase,  lease,  or  otherwise  real  or  per- 
sonal property  of  any  kind,  and  to  use,  maintain,  enjoy,  and  dispose  of 
the  same  for  the  benefit  of  said  corporation. 

(The  Taylor  $•  Brunton  Ore  Sampling  Company.) 
ARTICLE  2.  The  objects  for  which  said  company  is  created  are  to 
acquire,  hold  and  operate  mills  and  works  at  and  near  Aspen,  in  said 
County  of  Pitkin,  for  the  crushing,  sampling  and  testing  of  mineral- 
bearing  ores;  and  to  buy,  sell,  assay,  hold,  store,  ship  and  deal  in  such 
ores  and  their  products  on  its  own  account,  and  as  factor  or  agent  for 
others;  and  to  do  all  things  incident  to  the  general  business  of  maintain- 


404  MINING  CORPORATIONS,  DOMESTIC. 

ing  and  operating  such  mills  and  works,  and  dealing  in   all   kinds  of 
mineral-bearing  ores  and  the  products  and  proceeds  thereof. 

Filing  Fees — Domestic  Corporations. 

On  filing  its  Articles  in  the  office  of  the  Secretary  of  State 
each  domestic  corporation  is  required  to  pay  $20  for  the  first 
$50,000  of  its  capital  stock  and  20  cents  for  each  additional 
$1,000  of  stock. 

For  Certificate  of  Authority,  $5. 

Filing  impression  of  seal,  $2.50. 

On  filing  of  certificate  of  paid  up  stock,  $2.50,  plus  5  cents 
for  each  $1,000  of  stock  in  excess  of  $50,000. 

On  increase  of  capital,  20  cents  for  each  $1,000. 

Amendment  of  articles,  $5. 

Change  of  name,  $25. 

Filing  Fees — Foreign  Corporations. 

$30  for  the  first  $50,000  of  its  capital  stock,  and  30  cents 
for  each  additional  $1,000  of  stock. 

Certificate  of  Authority,  $5. 

Filing  impression  of  seal,  $2.50. 

Copy  of  law  under  which  organized,  $5. 

Designation  of  agency,  $5. 

Filing  certificate  of  paid  up  stock;  same  as  for  domestic 
corporation,  supra. 

On  increase  of  capitalization,  30  cents  for  each  $1,000. 

Amendment  of  Articles,  $5. 

Change  of  name,  $25. 

License  Tax. 

By  the  Kevenue  Act  of  1907  all  corporations,  domestic  or 
foreign,  are  charged  an  annual  license  tax  of  two  cents  upon 
each  $1,000  of  their  capital  stock.  The  tax  is  payable  to  the 
Secretary  of  State  on  or  before  May  1st.  The  penalty  for 


MINING  CORPORATIONS,  DOMESTIC.  405 

failure  to  pay  the  tax  is  a  forfeiture  of  the  right  to  do  business 
in  the  State,  besides  an  addition  of  one-tenth  to  the  tax  for 
each  six  months'  default  This  tax,  as  originally  imposed  in 
1902,  discriminated  against  foreign  corporations  by  assessing 
them  at  a  greater  percentage,  and  was  declared  void  by 
American  Sm.  Co.  v.  lAndsley,  204  U.  S.  103,  51  L.  Ed.  393, 
27  Sup.  Ct.  198,  9  Ann.  Gas.  978,  whereupon  the  act  was 
amended  as  above,  taxing  both  sorts  equally,  so  that  it  is  now 
doubtless  valid  as  to  both  classes.— 34  Colo.  240,  82  P.  531. 

Assessments  on  Stock. 

By  R.  S.  Sees.  978,  980,  981,  provisions  are  enacted  for  the 
assessment  of  shares  of  companies  whose  stock  is  made  assess- 
able under  the  charter  or  "by  the  laws  of  this*  State."  The 
assessment  is  to  be  made  by  action  of  the  board  of  directors  by 
a  majority  vote,  notice  of  meeting  being  first  given  to  each 
director.  No  greater  assessment  than  10  per  cent  can  be  made 
at  one  time,  and  a  second  assessment  must  not  be  within  thirty 
days  after  date  of  sales  under  the  previous  assessment. 

The  assessment  is  made  payable  "immediately,"  and  if 
unpaid  after  thirty  days  is  considered  delinquent  and  may  be 
advertised  for  thirty  days  in  a  daily  paper  published  at  the 
place  of  the  chief  office  of  the  company,  and  also  in  a  daily 
paper  published  where  the  mine  is  located  (with  provisions 
for  cases  where  daily  papers  are  not  published). 

If  not  paid  within  twenty  days  "from  the  date  the  same 
became  delinquent,"  the  secretary  is  empowered  to  sell  the 
shares  at  public  auction  in  front  of  the  chief  office  of  the 
company  to  the  highest  bidder  for  cash. 

The  Act  further  requires  notice  to  be  sent  to  each  stock- 
holder, informing  him  of  the  assessment. 

Almost  every  Colorado  mining  company  issues  only  non- 
assessable stock,  but  it  is  not  certain  that  such  stock  when  not 
paid  for  to  its  face  value  can  not  be  assessed  up  to  such  value, 
and  until  such  value  has  been  paid,  under  the  terms  of  Sec. 
850.  See  A.  Leschen  Co.  v.  Allen,  187  F.  977, 110  C.  C.  A.  315. 


406  MINING  CORPORATIONS,  DOMESTIC. 

The  procedure  to  make  formal  assessment,  under  the  terms 
of  the  three  sections  above  cited  together,  is  slow  and  compli- 
cated, and  much  of  the  wording  of  the  act  is  inconsistent  with 
other  clauses.  But  they  do  not  seem,  to  apply  to  assessments 
of  installments  of  purchase  price. 

Resolution  to  Assess. 

Eesolved,  That  an  assessment,  to  be  styled  Assessment  No.  1,  of  5  per 
cent,  is  hereby  levied  and  made  upon  each  and  every  share  of  the  capital 
stock  of  this  corporation,  The  Vanadis  Mining  Company,  payable  immedi- 
ately, at  the  office  of  the  company,  to  Jean  Francis  Webb,  the  treasurer. 

NOTICE   OF   ASSESSMENT. 

Office  of 

THE  VANADIS  MINING  COMPANY, 
No.  777  Stout  Street,  Denver,  Colorado. 

January  3,  1915. 
Brinton  Gregory,  Stockholder: 

You  are  hereby  notified  that  at  a  regular  meeting  of  the  board  of 
directors  of  The  Vanadis  Mining  Company,  this  day  held  at  the  office  of 
said  company,  by  a  majority  vote  of  all  the  directors,  notice  of  such  meet- 
ing having  been  first  given  to  each  director,  there  was  levied  and  assessed 
upon  each  and  every  share  of  the  capital  stock  of  said  company  5  per  cent 
of  the  par  value  of  such  stock;  such  5  per  cent  amounting  to  $25  on  your 
five  hundred  shares  of  stock,  payable  immediately  to  Jean  Francis  AY  ebb, 
the  treasurer,  at  this  office,  address  above  given;  and  that  such  assess- 
ment, if  not  paid  on  or  before  the  2nd  day  of  February,  1915,  will  be 
delinquent,  and  your  stock,  or  BO  much  thereof  as  may  be  necessary  to 
pay  the  assessment  and  cost  of  advertising,  will  be  sold,  the  sale  to  take 
place  on  April  2,  1915,  at  the  hour  of  10  o  'clock  A.  M.,  as  will  be  stated 
in  the  notice  of  sale.  GEORGE  NOLAN, 

Secretary. 

Notice  of  Assessment. 

The  subject  is  further  considered  in  Morrison's  Corporation 
Manual,  2nd  Ed.,  P.  189,  which  gives  the  form  of  advertise- 
ment of  sale  on  delinquent  stock.  It  is  doubtful  whether  a 
by-law  calling  for  forfeiture  of  delinquent  mining  stock 
instead  of  the  sale  provided  in  the  statute  would  be  valid. 


MINING  CORPORATIONS,  DOMESTIC.  407 

Irregular  Action. 

A  company  which  has  habitually  neglected  all  formalities 
can  not  plead  the  want  of  them  to  escape  liability. — G.  V.  S. 
Min.  Co.  v.  First  Nat.  Bank,  95  F.  23,  36  C.  C.  A.  633.  So  held 
where  it  allowed  one  director  to  assume  entire  management. — 
Robinson  Co.  v.  Johnson,  10  Colo.  App.  135,  50  P.  215.  A 
resolution  of  the  Board  is  not  necessary  to  bind  the  company 
where  it  has  had  value  received  with  knowledge. — McKenzie  v. 
Poorman  Mines,  88  F.  Ill,  112,  31  C.  C.  A.  409. 

Where  a  corporation  allows  its  president  and  general  man- 
ager to  practically  control  its  business  it  is  liable  on  a  note 
given  by  such  officer. — McKinley  v.  Mineral  Hill  Co.,  46  Wash. 
162,  89  P.  495. 

A  company  note  to  which  defendants  added  their  signatures 
as  trustees  may  be  shown  to  be  the  debt  of  the  corporation 
alone. — Knippenberg  v.  Greenwood  M.  Co.,  39  Mont.  11,  101 
P.  159. 

Powers  of  President  and  Other  Officers. 

The  president  of  a  company  has  the  power  to  do  what  is  inci- 
dental to  his  office.  All  other  acts  must  be  authorized  by  the 
board  of  directors. — Cushman  v.  Clover  Land  Co.,  170  Ind. 
402,  127  Am.  St.  Rep.  391,  16  L.  R.  A.  (N.  S.)  1078,  84  N.  E. 
759. 

The  secretary  of  the  company  has  no  power,  by  virtue  of 
that  office,  to  contract  for  the  company,  but  the  secretary  may 
be  made  the  company's  agent,  and  his  acts  then  bind  it. — Ross 
Oil  Co.  v.  Eastham,  73  Kan.  464,  85  P.  531.  The  same  as  to 
its  president.— Wood  v.  Saginaw  Co.,  20  S.  D.  161,  105  N.  W. 
101. 

The  president  and  secretary  alone  have  no  right  to  appoint 
a  general  agent. — Johnson  v.  Sage,  4  Ida.  758,  44  P.  641. 

Powers  of  Agents  and  Managers. 

Parties  dealing  with  general  agents  of  foreign  corporations 
have  the  right  to  assume  that  he  has  full  powers. — Rath  bun  v. 


408  MINING  CORPORATIONS,  DOMESTIC. 

Snow,  123  N.  Y.  343,  10  L.  R.  A.  355,  25  N.  E.  379.  Superin- 
tendent has  right  to  buy  current  supplies. — Stuart  v.  Adams, 
89  Gal.  367,  26  P.  970. 

May  offset  collection  against  wages. — Hood  v.  Hampton  Co., 
106  F.  408.  Principal  can  not  accept  benefits  and  repudiate 
agency.— Genter  v.  Conglomerate  Co.,  23  Utah  165,  64  P.  362; 
Barnard  v.  Roane  Co.,  85  Term.  139,  17  M.  R.  94,  2  S.  W.  21. 

No  authority  to  sell  the  future  product  of  the  mine ;  agent 
had  contracted  for  more  than  the  mine  could  produce. — 
Blackmer  v.  Summit  Co.,  187  111.  32,  58  N.  E.  289.  Persons 
dealing  with  an  agent  when  agent 's  authority  is  in  writing  are 
bound  to  take  notice  thereof. — Id. 

Mine  manager  has  no  power  to  bind  the  corporation  for 
medical  services  to  injured  employees. — Spelman  v.  Gold  Co., 
26  Mont.  76,  91  Am.  St.  Rep.  402,  55  L.  R.  A.  640,  66  P.  597. 
But  see  Mt.  Wilson  Co.  v.  Burbridge,  11  Colo.  App.  487,  53  P. 
826. 

A  mine  manager  can  not  in  general  borrow  money  or  pledge 
the  credit  of  his  company. — Hawtayne  v.  Bourne,  1  M.  R.  285, 
7  M.  &  W.  595;  Breed  v.  First  Nat.  Bank,  1  M.  R.  467,  4  Colo. 
481 ;  Cons.  Gregory  Co.  v.  Eaber,  1  M.  R.  405,  1  Colo.  511.  An 
agent  of  two  companies  has  the  right  to  exchange  supplies. — 
Adams  Co.  v.  Senter,  1  M.  R.  241,  26  Mich.  73.  An  agency  for 
the  care  of  property  may  be  both  created  and  proved  by  parol. 
— Ilardenlergh  v.  Bacon,  1  M.  R.  352,  33  Cal.  356. 

The  appointment  of  an  agent  for  a  corporation  to  make  a 
contract  for  work  and  labor  need  not  be  made  under  seal  or 
by  resolution  of  the  board. — Crowley  v.  Genesee  Co.,  4  M.  R. 
71,  55  Cal.  273.  Agent  can  not  act  for  both  parties  without 
their  consent.— Finnerty  v.  Fritz,  1  M.  R.  437,  5  Colo.  174. 

General  powers  of  superintendents,  or  general  agents  in 
charge  of  mine,  will  be  recognized  without  proof,  as  covering 
all  the  ordinary  local  business  of  the  concern,  and  persons 
dealing  with  them  have  a  right  to  assume  this,  unless  other- 
wise notified.— Adams  Co.  v.  Senter,  1  M.  R.  241,  26  Mich.  73. 
General  power  of  attorney  implies  no  power  to  make  promis- 


MINING  CORPORATIONS,  DOMESTIC.  403 

sory  note.— WasKburn  v.  Alden,  1  M.  R.  320,  5  Gal.  463.  The 
general  manager  has  the  power  to  hire  and  to  discharge  a 
superintendent. — Manross  v.  Uncle  Sam  Co.,  88  Kan.  237, 
Ann.  Gas.  1914B,  827,  128  P.  385. 

Incorporators,  Promoters,  Prospectus. 

Incorporators  are  liable  for  preliminary  expenses. — Hersey 
v.  Tully,  8  Colo.  App.  110,  44  P.  854.  See  Hecla  Co.  v.  O'Neill, 
65  Hun  619,  19  N.  Y.  Supp.  592;  Winters  v.  Rub  Co.,  57 
F.  287. 

And  the  company  may  be  held  for  the  contracts  of  its  pro- 
moters without  formal  adoption  of  the  same  by  resolution  of 
the  board.— Possell  v.  Smith,  39  Colo.  127,  88  P.  1064. 

Stock  sales  induced  by  the  false  statements  of  a  prospectus 
and  the  conduct  of  the  promoters  will  be  set  aside  and  the 
decree  will  go  against  the  company  itself  and  the  guilty  officers 
and  promoters.  The  case  fully  defines  what  constitutes  a  pro- 
moter.— Cox  v.  National  C.  Co.,  61  W.  Va.  291,  56  S.  E/494. 

Vendors  are  not  responsible  for  the  false  statements  con- 
tained in  the  prospectus  issued  by  the  purchasing  company. — 
Wiser  v.  Laivler,  189  U.  S.  260,  47  L.  Ed.  802,  23  Sup.  Ct.  624, 
22  M.  R.  630. 

Compensation  to  Officers — Commissions. 

Corporate  officers  may  recover  on  a  quantum  meruit  for 
services  in  excess  of  their  official  duties. — Gumaer  v.  Cripple 
Creek  Co.,  40  Colo.  1,  122  Am.  St.  Rep.  1024,  13  Ann.  Gas. 
781,  90  P.  81 ;  Severson  v.  Bimetallic  Co.,  18  Mont.  13,  44  P. 
79 ;  Felton  v.  West  Co.,  16  Mont.  81,  40  P.  70 ;  Ruby  Co.  v. 
Prentice,  25  Colo.  4,  52  P.  210.  But  must  prove  an  express 
contract  to  recover  for  the  usual  official  services. — Dit^.  7; 
Montana  Co.,  192  F.  714. 

And  a  binding  contract  to  pay  for  such  services  may  *be 
proved  without  showing  a  resolution  of  the  board  to  such 
effect.— In  re  Gouverneur  Co.,  168  F.  113. 


410  MINING  CORPORATIONS,  DOMESTIC. 

An  agent  acting  in  bad  faith  forfeits  commissions. — Wil- 
liams v.  McKinley,  65  F.  4. 

Fraudulent  Organization  and  Stock  Sales. 

A  company  may  sue  its  organizers  where  the  real  price  paid 
is  less  than  that  represented  to  the  stockholders. — Pittsburg 
Co.  v.  Spooner,  74  Wis.  307,  42  N.  W.  259,  17  Am.  St.  Rep. 
149,  17  M.  R.  226.  Acts  of  directors  distinguished  from  acts 
of  the  company. — Summerlin  v.  Fronteriza  Co.,  41  F.  249. 
Bono,  fide  holder  of  stock  issued  on  over  valuation  not  liable 
to  creditors.— DM  Pont  v.  Tilden,  42  F.  87. 

A  corporation  may  be  held  in  equity  to  refund  price  of 
stock  sold  on  fraudulent  prospectus  and  fraud  of  its  pro- 
moters.—Cox  v.  National  C.  &  Oil  Co.,  61  W.  Va.  291,  56  S.  E. 
494. 

Inexperienced  persons  buying  stock  have  a  right  to  rely 
upon  the  statements  of  the  promoters,  and  a  purchaser  has  his 
action  where  they  falsely  asserted  that  the  mine  was  free 
from  debt.— Tinker  v.  Kier,  195  Mo.  183,  94  S.  W.  501. 

Company  presumed  to  know  the  fraud  of  its  agents.— 
Argentine  Co.  v.  Benedict,  18  Utah  183,  55  P.  559. 

Distinction  stated  between  treasury  and  promotion  stock 
under  Nevada  Act  of  1909.— State  v.  Manhattan  Co.,  32  Nev. 
474,  109  P.  442. 

Fraud  Against  the  Company. 

Directors  are  liable  to  account  for  any  secret  profit  made  in 
the  promotion  of  a  company. — Wills  v.  Nehalem  C.  Co.,  52  Or. 
70.  96  P.  528. 

directors  deal  with  and  make  profit  out  of  their  cor- 
the  burden  is  on  them  to  show  that  the  transaction 
waJhfair  and  open. — Barker  v.  Montana  Co.,  35  Mont.  351,  89 
P.  66. 

Where  mining  property  is  located  or  purchased  by  an 
officer  of  the  corporation  his  liability  to  the  company  depends 


MINING  CORPORATIONS,  DOMESTIC.  411 

upon  whether  or  not  he  has  been  guilty  of  a  breach  of  trust. — 
Calumet  Co.  v.  Phillips,  31  Colo.  267,  72  P.  1064,  22  M.  R.  677 ; 
Lagarde  v.  Anniston  Co.,  126  Ala.  496,  20  M.  R.  545,  28  So. 

199. 

The  manager's  knowledge  of  value — of  ore  shoots  discovered 
in  the  mine — is  the  property  of  his  company. — Clark  v.  Buffalo 
Hump  Co.,  122  F.  243,  58  C.  C.  A.  607,  22  M.  R.  672. 

Complaint  held  good  where  a  stockholder  charged  the  com- 
pany with  attempt  to  depress  the  value  of  the  stock  and  of 
intention  to  not  perform  the  annual  labor  and  relocate  the 
company's  claims. — Glover  v.  Manila  M.  Co.,  19  S.  D.  559,  104 
N.  W.  261. 

Where  an  agent  bought  a  mine  for  $40,000  less  than  the 
price  he  represented  to  his  principal,  judgment  for  that  amount 
was  upheld  regardless  of  the  fact  that  the  agent  did  not  get 
the  entire  $40,000  himself. — Great  Western  Co.  v.  Chambers, 
155  Cal.  364,  101  P.  6. 

The  agent  of  a  mining  company  bought  in  its  property  at 
tax  sale.  The  company  refused  to  refund  or  redeem,  and  after 
several  years'  time  and  large  expenditure  a  rich  body  of  ore 
was  struck  in  the  mine.  Held,  that  there  was  no  trust  and  no 
equity  in  the  company. — Steinbeck  v.  Bon  Jlomme  M.  Co.,  152 
F.  333,  81  C.  C.  A.  441. 

Reorganization — Succession. 

Where  a  new  company  is  formed  with  same  stockholders  or 
other  like  suspicious  incidents  it  is  but  a  successor  and  liable 
for  the  debts  and  covenants  of  the  old  one. — Higgins  v.  Cali- 
fornia Co.,  122  Cal.  373,  55  P.  155,  147  Cal.  363,  81  P.  1070. 

Mine  in  Charge  of  Receiver. 

Where  plaintiff  improperly  secures  the  appointment  of  a 
receiver  of  a  mine,  he  may  be  charged  with  costs  in  excess  of 
any  fund  liable  for  them. — Hendrie  &  B.  Mfg.  Co.  v.  Parry, 
37  Colo.  359,  86  P.  113. 


412  MINING  CORPORATIONS,  DOMESTIC. 

The  practice  of  issuing  receiver's  certificates  to  operate  a 
mine  under  prior  secured  indebtedness,  condemned,  except 
within  certain  close  limitations. — International  Trust  Co.  v. 
Decker  Bros.,  152  F.  78,  81  C.  C.  A.  302,  11  L.  R.  A.  (N.  S.) 
152. 

A  receiver  has  no  authority  to  carry  on  mining  unless  so 
directed  by  the  Court,  and  the  Court  has  no  power  to  allow 
his  expense  account  to  cut  out  a  prior  lien. — Dalliba  v.  Win- 
schell  (Biggs),  11  Ida.  364,  114  Am.  St.  Rep.  267,  82  P.  107 ; 
Hendrie  &  B.  Co.  v.  Parry,  supra. 

A  party  who  secures  the  appointment  of  a  receiver,  and  at 
whose  instance  the  mine  is  worked  at  a  loss  is  personally  liable 
for  the  deficit.— Harrington  v.  Union  Oil  Co.,  144  F.  235; 
Hendrie  &  B.  Co.  v.  Parry,  supra. 

The  receiver  should  pay  for  use  of  tools  used  by  him  in 
operating  oil  wells. — Midland  Oil  Co.  v.  Turner,  179  F.  74, 
102  C.  C.  A.  368. 

A  receiver  is  entitled  to  compensation  out  of  the  fund  to  be 
ultimately  chargeable  against  the  losing  party. — Doddridge 
Co.  v.  Smith,  173  F.  386. 

On  behalf  of  minority  stockholders,  a  receiver  may  be  ap- 
pointed where  the  mine  has  been  collusively  operated  to  the 
benefit  of  a  hostile  company. — Ames  v.  Goldfield  Co.,  227  F. 
292. 

Taking  possession  of  mine  under  color  of  process  by  collu- 
sion with  the  Court  itself  considered  with  judicial  condemna- 
tion of  such  high-handed  proceedings. — Tornanses  v.  Melsing, 
106  F.  775,  45  C.  C.  A.  615. 

Amendment  of  Articles. 

This  subject  in  Colorado  is  regulated  by  the  Act  of  1907. — 
R.  S.  Sees.  878-886.  A  meeting  of  stockholders  must  be  called 
for  on  30  days'  notice,  and  two- thirds  must  assent  to  the 
amendment. 


FOREIGN  CORPORATIONS.  413 

Dissolution. 

Provision  is  made  for  the  dissolution  of  solvent  corporations 
desiring  to  go  out  of  business,  by  the  publication  and  filing  of 
notices,  without  judicial  action  thereon. — R.  S.  Sec.  895. 

For  consideration  of  the  rights  of  stockholders  when  the 
company  has  quit  business  and  has  no  known  board  of  direc- 
tors, see  Tennessee  Co.  v.  Ayers  (Tenn.),  43  S.  W.  744. 

A  mining  or  quarry  company  comes  within  the  provisions  of 
the  Bankruptcy  Acts. — In  re  Mathews  C.  Slate  Co.,  144  F. 
724;  Burdick  v.  Dillon,  144  F.  737,  75  C.  C.  A.  603;  In  re 
Quincy  G.  Q.  Co.,  147  F.  279. 


FOREIGN  CORPORATIONS. 


A  corporation  has  no  recognized  existence  except  by  comity 
outside  of  the  State  of  its  organization.  It  is,  however,  always 
allowed  to  do  business  elsewhere  by  complying  with  certain 
statutory  conditions  for  the  protection  of  local  creditors,  such 
conditions  usually  including  that  it  file  a  copy  of  its  articles 
with  the  Secretary  of  State  and  with  the  County  Recorder  of 
the  place  where  it  is  intended  to  carry  on  its  mining  operations 
or  other  principal  business,  and  that  it  designate  a  local  agent 
upon  whom  process  may  be  served. 

Such  conditions  for  Colorado  are:  That  it  file  a  copy  of  its 
charter  in  the  office  of  the  Secretary  of  State,  or  if  "incor- 
porated by  certificate  under  any  general  incorporation  law,  a 
copy  of  such  certificate  and  of  such  general  incorporation  law 
duly  certified  and  authorized  by  the  proper  authority  of  such 
foreign  State,  Kingdom  or  Territory. ' ' 

That  it  file  with  the  Secretary  of  State  and  in  the  office  of 
the  County  Recorder  a  certificate  designating  its  principal 
place  of  business  and  designating  an  agent  residing  at  such 
principal  place  of  business  upon  whom  process  may  be  served. 
—Sees.  916,  917. 


414  FOKEIGN  COBPORATIONS. 

A  failure  to  comply  with  either  of  the  above  requirements 
imposes  personal  liability  on  its  officers,  agents  and  stock- 
holders for  the  debts  of  the  company. 

It  must  receive  from  the  Secretary  of  State  a  certificate  that 
all  the  filing  fees  and  taxes  have  been  paid,  commonly  called 
a  certificate  of  authority. — Sec.  910. 

DESIGNATION  OF  PROCESS   AGENT. 

STATE  OF  NEW  YORK,  County  of  New  York:  ss. 

It  is  hereby  certified,  That  the  Mohawk  Mining  Company,  a  corpora- 
tion organized  under  the  laws  of  said  State,  doth  hereby  designate  that 
the  "principal  place  where  the  business  of  such  corporation  shall  be  car- 
ried on  in  the  State  of  Colorado,"  is  Central  City,  County  of  Gilpin,  State 
of  Colorado,  and  that  Henry  C.  Seeker,  residing  at  said  principal  place 
of  business,  is  the  authorized  agent  of  said  company,  upon  whom  process 
may  be  served. 

Witness  the  corporate  name  and  seal  of  said  company,  and  the  signa- 
tures of  its  President  and  Secretary,  this  3d  day  of  February,  A.  D.  1916. 
MOHAWK  MINING  COMPANY, 

[SEAL.]  J.  BKISBIN  WALKER,  President, 

CLARENCE  GARY,  Secretary. 

STATE  OF  NEW  YORK,  County  of  New  York:  ss. 

I,  Herbert  E.  Dickson  (195  Broadway),  Commissioner  of  Deeds  of  the 
State  of  Colorado,  duly  commissioned  and  sworn,  in  and  for  said  County, 
do  hereby  certify  that  J.  Brisbin  Walker,  President,  and  Clarence  Gary, 
Secretary,  of  thfe  within  named  corporation,  who  are  personally  known  to 
me  to  be  such  President  and  Secretary  of  said  corporation,  personally 
appeared  before  me  this  day,  and  acknowledged  the  within  Instrument  (in 
duplicate)  to  be  their  free  and  voluntary  act  and  deed,  and  the  free  and 
voluntary  act  and  deed  of  said  corporation. 

Witness  my  hand  and  official  seal  this  3d  day  of  February,  A.  D.  1916. 

[SEAL.]  Herbert  E.  Dickson, 

Commissioner  of  Colorado. 

One  copy  of  the  above  instrument  must  be  filed  with  the 
Secretary  of  State,  and  one  in  the  office  of  the  Recorder  of  the 
proper  county. 

Designation  by  title  of  office  was  held  good  where  a  cor- 
poration had  stated  that  its  "general  manager"  should  be  its 
process  agent. — Goodwin  v.  Colorado  Co.,  110  U.  S.  1,  28  L.  Ed. 
47,  3  Sup.  Ct.  Rep.  473. 


TENANTS  IN  COMMON.  415 

Discriminations  Against  Foreign  Corporations. 

Besides  the  above  special  requirements  it  is  declared  that 
they  "shall  be  subjected  to  all  the  liabilities,  restrictions  and 
duties  which  are  or  may  be  imposed  on"  domestic  corporations. 
Where  they  mortgage  their  property  they  must  give  public 
notice  so  that  prior  creditors  may  protect  themselves.  They 
must  file  annual  reports  the  same  as  domestic  companies.  And 
the  re-organization  or  liquidation  of  foreign  companies  to  the 
prejudice  of  local  shareholders  is  attempted  to  be  prohibited. 
— E.  S.  Sees.  911,  917,  920. 

Domestic  Charter  Preferable. 

The  provisions  of  the  above  and  like  statutes  in  other 
States,  together  with  the  fact  that  a  foreign  corporation  is 
liable  to  attachment  for  debt  as  a  non-resident,  and  must  file 
special  security  for  costs  where  a  plaintiff,  render  a  domestic 
organization  preferable  in  most  cases. 

In  Colorado  the  incorporators  are  not  required  to  be  citizens 
or  residents  of  the  State. — Humphreys  v.  Mooney,  4  M.  R.  76, 
5  Colo.  282. 


TENANTS  IN  COMMON. 

Right  to  Work  the  Mine. 

Two  or  more  persons  owning  undivided  interests  in  mining 
ground  are  tenants  in  common,  but  unless  working  it  together 
by  agreement  are  not  partners. 

At  common  law  each  could  work  without  accounting  to  the 
other.  This  was  changed  by  the  Statute  of  4  Anne  Ch.  16, 
Sec.  27. 

Most  States  have  adopted  the  tenor  of  that  statute,  to-wit : 
That  the  excluded  co-tenant  may  have  his  proper  action  for 
his  share  of  the  proceeds  of  the  working. 

When  any  such  statute  has  been  enacted  giving  the  right  to 
an  account  and  taking  away  the  common  law  right  of  each  to 


416  TENANTS  IN  COMMON. 

work  at  his  own  risk  but  to  his  own  exclusive  profit,  the  law 
seems  to  be: 

That  any  co-tenant  may  work  the  common  property,  at  his 
own  risk  if  he  works  to  a  loss,  but  must  account  to  his  co- 
tenants  if  he  works  to  a  profit. 

Where  a  single  co-tenant  works  a  mine  he  can  not  demand 
contribution  from  those  not  working,  but  if  pay  ore  is  taken 
out  he  can  deduct  their  proper  share  for  all  expenditures 
which  improve  the  value  of  the  mine  or  lead  to  the  discovery 
of  ore,  but  not  for  the  expenses  of  unsuccessful  prospecting. — 
Wolfe  v.  Childs,  42  Colo.  121,  126  Am.  St.  Rep.  152,  94  P.  292. 

The  owner  of  the  majority  interest  may,  by  statute  in  Idaho, 
work  the  mine,  but  may  not  exclude  the  minority  from  access 
to  the  property.— Sweeney  v.  Hanley,  126  F.  97,  61  C.  C.  A. 
153. 

Where  the  minority  works,  the  majority  may  direct  the  man- 
agement.— Hawkins  v.  Spokane  Co.,  3  Ida.  241,  28  P.  433, 
3  Ida.  650,  33  P.  40. 

No  pay  for  time  nor  compensation  for  lost  profits,  barring 
exceptional  instances,  is  allowed  one  against  the  other. — Wolfe 
v.  Childs,  supra;  Uncle  Sam  Co.  v.  Richards,  (Okla.)  158  P. 
1187.  3^ 

Measure  of  Damages  on  Accounting. 

The  measure  of  damages  adopted  has  not  been  uniform. 
The  rental  value  of  the  premises  was  allowed  in  the  leading 
case  of  Early  v.  Friend,  16  Grat.  21,  78  Am.  Dec.  649,  14 
M.  R.  271. 

The  value  of  the  coal  in  place  was  allowed  in  McGowan  v. 
Bailey,  179  Pa.  470,  36  Atl.  325. 

"What  is  just  and  equitably  due"  is  the  measure  of  account- 
ing under  Pennsylvania  Statute.— Fulmer's  Appeal,  128  Pa. 
24,  15  Am.  St.  Rep.  662,  18  Atl.  493.  See  full  note  to  the  case 
as  reported  in  17  M.  R.  246. 

Another  line  of  cases  allows  full  share  of  the  profits,  which 
is  not  a  just  rule  where  a  plaintiff  has  assumed  none  of  the 


TENANTS  IN  COMMON.  417 

risks.— Williamson  v.  Jones,  43  W.  Ya.  562,  64  Am.  St.  Rep. 
891,  38  L.  R.  A.  694,  27  S.  E.  411,  19  M.  R.  19;  Job  v.  Potion, 
L.  R.  20  Eq.  84,  14  M.  R.  329. 

Where  the  entire  property  is  leased  by  one  co-owner  at  a 
fixed  royalty  the  measure  of  damages  is  plaintiff's  proportion 
of  the  royalty.— Cecil  v.  Clark,  49  W.  Va.  459,  39  S.  E.  202. 

The  co-tenant  is  entitled  to  his  share  of  the  profits,  but 
where  defendant  has  worked  to  a  loss  plaintiff  is  not  entitled 
to  any  recovery. — Edsall  v.  Merrill,  37  N.  J.  Eq.  114 ;  McCord 
v.  Oakland  Co.,  64  Cal.  134,  27  P.  863,  49  Am.  Rep.  686. 

In  Illinois  a  single  co-tenant  working  the  mine  was  treated 
as  a  trespasser  in  Murray  v.  Haverty,  70  111.  318, 14  M.  R.  325. 
And  the  law  of  Montana  as  to  co-tenants  was  construed  with 
almost  equal  severity  in  Anaconda  Co.  v.  Butte  Co.,  17  Mont. 
519,  43  P.  924;  Bed  Mountain  Co.  v.  Esler,  18  Mont.  174, 
44  P.  523. 

In  Dettering  v.  Nordstrom,  148  F.  81,  78  C.  C.  A.  157, 
defendant  suffered  a  harsh  judgment  and  was  not  allowed 
expenses  on  technical  points  of  pleading  and  evidence. 

One  co-tenant  may  work  the  whole  mine,  but  must  account 
to  his  co-tenant  for  profits.  He  is  not  deprived  of  the  right 
to  deduct  expenses  by  the  fact  that  he  intended  to  keep  all  the 
proceeds,  nor  can  he  be  punished  with  compound  interest  for 
such  intent. — Silver  King  Co.  v.  Silver  King  Co.,  204  F.  166, 
122  C.  C.  A.  402. 

As  to  what  is  sufficient  proof  of  co-tenancy,  see  Costello  v. 
Cunningham,  16  Ariz.  447,  147  P.  701. 

Relations  to  the  Common  Title. 

A  relocation  by  one  operates  for  the  benefit  of  all,  even  if 
made  unknown  to  the  others,  and  with  a  change  of  name  of 
the  claim.— Fan  Wagenen  v.  Carpenter,  27  Colo.  444,  445,  61 
P.  698.  See  p.  156. 

A  tax  title  acquired  by  one  of  the  co-tenants  enures  to  the 
benefit  of  all.— Moragne  v.  Doe,  143  Ala.  459,  111  Am.  St.  Rep. 
52,  5  Ann.  Cas.  331,  39  So.  161. 


418  INDIAN  RESERVATION. 

Possession  by  a  co-tenant  is  not  adverse  without  notice  to 
the  co-tenant  out  of  possession  that  his  title  is  denied. — Rich 
v.  Victoria  Co.,  147  F.  380,  77  C.  C.  A.  558.  And  where  the 
mineral  and  surface  estates  have  been  severed  the  possession 
of  the  surface  owner  is  not  possession  of  the  minerals. — Man- 
ning v.  Kansas  Co.,  181  Mo.  359,  81  S.  W.  140. 

They  may  deal  with  each  other  as  with  strangers  as  to  their 
respective  interests  in  the  common  property. — Bissell  v.  Foss, 
114  U.  S.  252,  29  L.  Ed.  126,  5  Sup.  Ct.  Rep.  851;  Lichten- 
lerger  v.  Newhouse,  41  Utah  22, 123  P.  624.  But  they  can  not 
collude  with  one  another  or  with  strangers  to  deprive  a  co- 
tenant  of  his  full  share  of  purchase  money.  See  citations,  p. 
355.  A  co-tenant  is  not  bound  to  reveal  his  knowledge  of 
mineral  value  when  purchasing  the  interest  of  his  associate. — 
Richardson  v.  Heney  (Ariz.),  157  P.  980. 

A  co-tenant  may  not  use  the  common  property  through 
which  to  work  other  property  in  which  his  co-owner  has  no 
interest— People  v.  District  Court,  20  M.  R.  734,  27  Colo.  465, 
62  P.  206 ;  Butte  Co.  v.  Montana  Co.,  24  Mont.  125,  60  P.  1039 ; 
Laesch  v.  Morton,  38  Colo.  171,  120  Am.  St.  Rep.  106,  87  P. 
1081. 


INDIAN  RESERVATION. 

An  Indian  reservation  is  not  a  part  of  the  public  domain 
open  to  exploration,  or  occupation,  and  a  valid  mining  location 
can  not  be  made  upon  it. — French  v.  Lancaster,  2  Dak.  346, 
47  N.  W.  395;  Gibson  v.  Anderson,  131  F.  39,  65  C.  C.  A.  277. 
Nor  can  both  parties  waive  the  point. — 2  Dak.  346,  47  N.  W. 
395.  An  attempted  location  made  before  the  extinguishment 
of  the  Indian  title  must  yield  to  one  made  after  its  purchase. 
—Kendall  v.  San  Juan  S.  M.  Co.,  9  Colo.  349,  12  P.  198. 

But  in  Noonan  v.  Caledonia  M.  Co.,  121  U.  S.  393,  30  L.  Ed. 
1061.  7  Sup.  Ct.  911,  the  Supreme  Court  of  the  United  States 
have  ruled  that  on  the  cession  of  the  reservation  the  claim 


FOREST  RESERVES.  419 

becomes  valid.  This  case  was  followed  by  the  affirmance  of  the 
Kendall  v.  San  Juan  Co.  case  above  cited  (144  U.  S.  658,  36 
L.  Ed.  583,  12  Sup.  Ct.  Rep.  779,  17  M.  R.  475),  where  the 
Court  adjudged  that  the  original  location,  although  not  valid, 
might  have  been  made  good  by  record  in  the  nature  of  a  reloca- 
tion within  the  same  period  of  time  after  the  opening  of  the 
reserve,  as  is  allowed  to  record  from  the  date  of  discovery. 
This  not  having  been  done,  an  intervening  locator  who  entered 
after  the  opening  of  the  reservation  was  held  to  have  the  elder 
and  better  title. 

A  claim  within  the  reservation  can  not  be  patented. — Copp, 
M.  L.  253.  And  the  location  of  scrip  thereon  is  void. — U.  S. 
v.  Carpenter,  111  U.  S.  347,  28  L.  Ed.  451,  4  Sup.  Ct.  Rep.  435. 

The  Court  will  protect  a  right  to  mine  by  license  from  the 
Indian  nation.— Oolagah  Co.  v.  McCaleb,  68  F.  86,  15  C.  C.  A. 
270. 

When  a  reservation  is  opened  it  is  not  necessary  for  mineral 
prospectors  to  await  the  issue  of  the  proclamation. — McFadden 
v.  Mt.  View  Co.,  87  F.  154. 

A  location  on  an  opened  reservation  is  not  avoided  by  the 
fact  that  the  locator  had  been  on  the  ground  before  it  became 
open  to  entry.— Le  Glair  v.  Hawley,  18  Wyo.  23,  102  P.  853. 


FOREST  RESERVES.  NATIONAL  FORESTS. 


By  a  series  of  acts  beginning  with  the  Act  of  March  3,  1891, 
the  President  was  authorized  to  set  apart  by  proclamation 
forest  reserves  on  any  part  of  the  public  lands. 

The  original  Act  was  a  single  section  reading  as  follows: 

That  the  President  of  the  United  States  may,  from  time  to  time,  set 
apart  and  reserve,  in  any  State  or  Territory  having  public  land  bearing 
forests,  in  any  part  of  the  public  lands  wholly  or  in  part  covered  with 
timber  or  undergrowth,  whether  of  commercial  value  or  not,  as  public 
reservations,  and  the  President  shall,  by  public  proclamation,  declare 
the  establishment  of  such  reservations  and  the  limits  thereof. — Sec.  24, 
26  Stat.  L.  1103;  Compiled  Laws  1901,  page  1537. 


420  FOEEST  KESERVES. 

By  Act  of  June  4,  1897,  the  Secretary  of  the  Interior  was 
authorized  to  "make  such  rules  and  regulations  *  *  *  as 
will  insure  the  objects  of  such  reservations,  namely,  to  regulate 
their  occupancy  and  use  and  to  preserve  the  forests  thereon 
from  destruction,"  violation  of  such  rules  being  punishable 
by  fine  and  imprisonment. — 30  Stat.  L.  35.  By  Act  of  Febru- 
ary 1,  1905,  the  powers  of  the  Secretary  of  the  Interior  were 
transferred  to  the  Department  of  Agriculture. — 33  Stat.  L. 
628.  These  acts  seem  to  continue  the  right  to  dispose  of  the 
title  or  of  easements  with  the  Secretary  of  the  Interior,  but 
to  give  control  of  the  Forest  Reserves  in  all  other  respects  to 
the  Secretary  of  Agriculture. 

Under  this  authority  the  Secretary  of  Agriculture  has  issued 
what  is  known  as  the  Use  Book.  Against  the  most  plausible 
contention  that  it  was  delegated  legislation  and  against  the 
further  contention  that  the  location  of  a  mining  claim  was  a 
segregation  of  its  area  from  the  public  domain,  the  power  to 
inflict  punishment  for  violation  of  these  rules  has  been  sus- 
tained. The  point  arose  upon  the  prosecution  of  the  claimant 
for  keeping  a  saloon  on  his  claim. — U.  S.  v.  Rizzinelli,  182  F. 
675.  The  like  ruling  was  made  in  a  civil  suit  against  a  cattle 
owner  in  Light  v.  U.  S.,  220  U.  S.  523,  55  L.  Ed.  570,  31  Sup. 
Ct.  Rep.  485.  See  also  Cosmos  Co.  v.  Gray  Eagle  Co.,  190  U.  S. 
301,  47  L.  Ed.  1064,  23  Sup.  Ct.  Rep.  692,  24  Sup.  Ct.  Rep.  860. 

We  can  not  assume  that  such  regulations  will  be  maintained 
beyond  the  limitations  contained  in  the  A.  C.,  but  the  Use 
Book  goes  beyond  these  limitations  and  far  beyond  anything 
heretofore  known  in  the  control  of  the  public  domain.  These 
various  acts  reserve  the  right  to  use  timber  to  the  mining 
claimant,  but  the  regulations  go  as  far  as  possible  to  make  the 
permission  of  little  practical  value. 

Under  the  original  Act  and  its  amendments  vast  tracts  have 
been  reserved  in  all  parts  of  the  West,  some  of  the  reservations 
being  almost  totally  clear  of  timber  and  on  most  of  them  the 
timber  found  being  of  little  or  no  commercial  value.  The  Use 
Book  for  1915  states  that  there  are  154  forests  with  an  area  of 
162,000,000  acres,  which  equals  263,125  square  miles. 


FOREST  RESERVES.  421 

By  Act  of  March  4,  1907,  the  authority  to  create  new  reser- 
vations or  enlarge  the  old  ones  in  Oregon,  Washington,  Idaho, 
Colorado  and  Wyoming  was  withdrawn. — Comp.  Laws  of  1911, 
page  648.  California  was  added  to  this  list  by  37  Stat.  L. 
497. 

In  1905  the  name  of  "Forest  Reserves"  was  changed  to 
"National  Forests." 

The  acts  allow  the  discovery  and  location  of  mining  claims, 
both  lode  and  placer,  on  the  reserves,  and  a  mining  claim  in  a 
forest  reserve  is  made  exactly  as  if  it  were  on  non-reserved 
land,  but  the  Forest  Ranger  is  authorized  to  examine  and 
report  as  to  its  being  a  bona  fide  claim. 

In  U.  S.  v.  Lavenson,  six  patents  on  a  forest  reserve  were 
cancelled  because  issued  without  consideration  of  the  protest 
of  the  Forest  Ranger,  and  because  there  was  no  mineral  value 
on  the  property. — 206  F.  755.  The  protest  of  the  Forest 
Ranger  had  been  apparently  overlooked  by  the  Land  Office  by 
its  own  negligence. 

The  power  of  the  Secretary  to  make  rules  on  use  of  Forest 
Reserves  and  the  power  of  the  government  to  punish  -viola- 
tion of  the  same  as  crimes  against  the  United  States  were 
upheld  by  the  Federal  Supreme  Court  in  U.  S.  v.  Gnmaud, 
220  U.  S.  506,  55  L.  Ed.  563,  31  Sup.  Ct.  Rep.  480;  on  re- 
argument  after  the  Court  had  been  evenly  divided  on  the  ques- 
tion in  the  same  case.— 216  U.  S.  614,  54  L.  Ed.  639,  30  Sup.  Ct. 
Rep.  576. 

Loney  v.  Scott  holds  that  claims  may  be  located  on  a  Forest 
Reserve,  but  that  lands  withdrawn  for  "irrigation  works"  are 
a  permanent  withdrawal  and  not  open  to  mining  location.-— 
57  Or.  378,  32  L.  R.  A.  (N.  S.)  466,  112  P.  172. 

All  mining  rights  of  way  are  allowed  across  the  forests. — 33 
Stat.  L.  628. 

The  Department  holds  that  it  may,  of  its  own  motion,  exam- 
ine into  the  legality  of  a  location  on  the  reserve. — 38  L.  D.  59. 

The  United  States  has  the  right  to  dispose  of  infected  timber 
on  mining  claims. — Lewis  v.  Garlock,  168  F.  153. 


422  THE  WITHDRAWAL  ACTS. 

The  regulations  of  the  department  permit  owners  of  mining 
claims  to  ,cut  timber  for  actual  mining  purposes  in  connection 
with  the  particular  claim  for  which  the  timber  is  cut. — Par. 
20,  30  L.  D.  28. 

Jurisdiction  over  timber  cutting  on  the  reserve  is  vested  IB 
the  Department  of  Agriculture. — 43  L.  D.  465. 

Mill  site  locations  on  Forest  Reserve  held  valid. — 43  L.  D. 
257,  44  L.  D.  197. 

In  the  location  of  a  claim  upon  a  Forest  Reserve  the  dis- 
covery, staking,  and  record  are  perfected  with  no  reference  to 
the  fact  of  its  being  upon  such  reserve;  nor  does  the  super- 
vision of  the  Forest  Ranger  affect  the  title  or  the  possessory 
status,  but  his  suggestions  in  regard  to  use  of  timber  must  be 
heeded.  If  there  be  no  mineral  value  upon  which  to  locate 
and  the  ranger  assert  such  fact,  it  is  not  followed  by  any 
action  on  his  part  to  set  aside  the  claim,  but  when  application 
for  patent  is  made,  a  protest  on  this  ground  may  be  made  on 
behalf  of  the  parties  or  department  supposed  to  be  looking 
after  the  protection  of  the  forests. 


THE  WITHDRAWAL  ACTS. 


By  Act  of  June  25,  1910,  the  President  was  authorized  at 
any  time  in  his  discretion  to  temporarily  withdraw  from  settle- 
ment, location,  sale  or  entry  public  land  in  any  State,  includ- 
ing Alaska,  and  reserve  the  same  for  water  power  sites,  irriga- 
tion, classification  of  lands  or  other  purposes. — 36  Stat.  L.  847.; 
Comp.  Laws  1911,  page  593. 

Vested  rights  were,  of  course,  reserved  in  the  Act  and  as  to 
minerals  it  was  provided  that  the  withdrawn  lands  should 
remain  open  to  exploration  for  minerals  other  than  coal,  oil, 
gas  and  phosphates,  with  a  proviso  that  any  boiia  fide  occu- 
pant or  claimant  of  oil  bearing  lands  who,  at  the  date  of 
withdrawal,  was  in  diligent  prosecution  of  work  leading  to  dis- 
covery of  oil  or  gas  should  not  be  affected  or  impaired  by  such 


THE  WITHDRAWAL  ACTS.  423 

order  so  long  as  such  occupant  or  claimant  should  continue  in 
diligent  prosecution  of  said  work. 

By  Act  of  August  24,  1912,  the  Act  was  amended  with  a 
repetition  of  the  same  saving  clause  as  to  rights  of  oil  seek- 
ers.—37  Stat.  L.  497.  But  the  right  to  prospect  and  locate 
was  now  restricted  to  metalliferous  minerals — which  prac- 
tically means  that  lode  claims  may  be  recorded  upon  such 
lands,  but  not  placers. 

Under  the  power  so  conferred,  immense  tracts  were  with- 
drawn and,  although  the  rights  of  oil  seekers  already  on  the 
ground  were  apparently  protected,  the  policy  of  the  govern- 
ment as  to  such  oil  seekers  immediately  became  active,  and  by 
numerous  suits  they  have  been  treated  as  trespassers  upon  the 
public  domain  and  forced  to  bring  themselves  as  defendants 
into  full  proof  of  such  facts  as  would  save  their  initiated 
rights  by  bringing  themselves  within  the  excepting  clauses 
of  the  acts. 

The  validity  of  the  Withdrawal  Acts  was  at  once  contested 
and  such  contest  was  upheld  in  the  lower  court. — U.  S.  v.  Mid- 
way N.  Oil  Co.,  216  F.  802. 

But  the  National  Supreme  Court  in  a  majority  opinion 
reversed  the  lower  Court  and  held  the  right  of  withdrawal  to 
be  valid  on  the  ground  that  such  had  been  the  long  estab- 
lished practice  in  dealing  with  the  public  domain. — U.  8.  v. 
Midwest  Oil  Co.,1 236  U.  S.  459,  59  L.  Ed.  673,  35  Sup.  Ct. 
Rep.  309. 

Extent  of  U.  S.  Recovery. 

In  the  suit  brought  in  California  against  the  Midway  and 
other  oil  companies  to  oust  them  from  the  oil  lands  they  had 
developed,  the  lower  Court  at  first  held  the  withdrawals  to  be 
void  and  dismissed  the  suits. — 216  F.  802,  supra.  But  after 
the  Midwest  decision  the  cases  were  reinstated  and  a  drastic 
decision  handed  down  against  them. — 232  F.  619. 

The  Court  held  that  location  of  placer  oil  claims  prior  to 
the  withdrawal  without  actual  discovery  of  the  oil  gave  the 
locators  no  rights  under  the  saving  clauses  of  the  Act,  and 


424  THE  WITHDKAWAL  ACTS. 

that  surface  expenditures  and  outlays  to  bring  water  on  the 
land  which  was  absolutely  necessary  before  even  drilling  could 
be  begun  was  not  sufficient  diligence.  That  the  companies 
were  neither  actual  occupants  nor  in  the  diligent  prosecution 
of  work.  (To  same  effect  is  The  Pacific  Midway  case,  44  L.  D. 
420.) 

The  land  prior  to  the  discovery  was  an  arid  desert  of  the 
nominal  value  of  $3  per  acre,  but  by  the  success  of  the  wells 
became  worth  $2,000  per  acre,  and  this  immense  accretion  of 
value  was  due  directly  to  the  expenditures  of  the  defendants 
in  excess  of  $1,000,000. 

Although  phosphate  and  other  placer  minerals  are  included 
in  the  withdrawals  as  mentioned  later,  the  burden  of  the 
pressure  of  the  acts  is  upon  coal  and  gas. 

These  pre-eminent  equities  in  favor  of  the  defendants  were 
held  by  the  Court  mere  circumstances  of  mitigation  which 
would  not  prevent  the  government  from  securing  the  prop- 
erty itself  and  all  its  products,  the  increase  in  value  and  the 
profits  of  the  risk — but  that  they  should  allow  to  the  oil  com- 
panies the  cost  of  "extracting  and  marketing  the  oil." 

The  cost  of  drilling  was  not  allowed  on  the  accounting,  but 
was  to  be  allowed  in  case  the  government  proved  damages  inci- 
dental to  the  trespass  to  the  extent  of  the  trespass  damages, 
but  no  more.  As  there  were  no  trespass  damages  this  offset 
amounted  to  nothing. 

The  rule  that  the  occupant  in  good  faith  should  be  allowed 
for  his  improvements  before  restoration  to  the  owner  was 
held  not  to  apply. 

The  oil  companies  were  allowed  to  remove  their  tools  which, 
even  if  they  had  been  willful  trespassers,  would  have  re- 
mained their  property,  and  their  movable  fixtures  were  not 
confiscated. 

The  later  case  of  U.  S.  v.  McCutcJien  ruled  like  points  with 
equal  strictness.— 234  P.  702. 

The  department  in  the  case  of  the  Honolulu  Oil  Co.,  where 
Ihe  applicants  had  expended  large  sums  in  prospecting  and 


THE  WITHDRAWAL  ACTS.  425 

had  started  drilling  at  the  date  of  withdrawal,  September  27, 
1909,  held  that  the  facts  brought  the  company  within  the  sav- 
ing clauses  and  validated  their  entire  group  of  twelve  entries. 
This  Honolulu  case  should  be  expected  in  45  L.  D. 

Subsequent  discovery  of  oil,  where  work  was  not  being  prose- 
cuted at  date  of  withdrawal,  does  not  protect  the  claim. — 40 
L.  D.  303. 

Amended  location,  taking  up  more  ground,  can  not  be  made 
after  withdrawal.— 43  L.  D.  232. 

It  is  obvious  that  the  very  general  terms  of  the  Withdrawal 
Acts  implied  that  future  legislation  was  necessary  to  control 
the  ultimate  disposition  of  such  lands,  but  no  provision  for 
ultimate  sale  or  lease  has  been  made  except  as  hereinafter 
noted.— 44  L.  D.  568. 

Severance  of  Surface  and  Mineral  Titles — Asphalt  Acts. 

The  original  Act  of  1910  was  followed  by  certain  acts  intro- 
ducing a  new  policy  for  the  granting  of  surface  rights  with 
reservation  of  minerals  to  the  government. 

By  General  Act  of  July  17,  1914,  38  Stat.  L.  509,  "lands 
withdrawn  or  classified  as  phosphate,  nitrate,  potash,  oil,  gas 
or  asphaltic  minerals  or  which  are  valuable  for  those  deposits," 
were  declared  open  to  entry  under  any  of  the  non-mineral 
Land  Office  procedures,  the  patent  to  reserve  such  minerals  to 
the  United  States  with  conditions  for  future  prospecting  of 
such  minerals,  and  clauses  for  bonds  and  damages  with  pre- 
vision of  the  complications  certain  to  follow  such  partnership 
between  the  United  States  and  the  prospector. 

Temporary  Acts. 

By  Act  of  March  2,  1911,  36  Stat.  L.  1015,  amended  by  Act 
of  August  25,  1914,  38  Stat.  L.  305,  it  was  declared  that  pat- 
ents on  oil  and  gas  lands  should  not  be  denied  because  of  any 
transfer  by  the  locator  before  discovery  if  the  lands  had  not 
been  withdrawn,  and  provided  for  contracts  between  the  Sec- 
retary of  the  Interior  and  the  owner  of  a  certain  class  of  oil 


426  THE  WITHDRAWAL  ACTS. 

and  gas  claims  for  division  of  the  proceeds  of  the  wells,  which 
acts  seem  to  have  been  of  only  temporary  operation. 

Utah  and  Idaho. 

Two  special  acts,  one  confined  to  Idaho  and  one  to  Utah, 
provided  for  sale  of  such  lands  with  reservation  of  certain 
minerals  to  the  Government. — Idaho,  February  27,  1913,  37 
Stat.  L.  687 ;  Utah,  August  29, 1912,  37  Stat.  L.  496. 

Recapitulation. 

The  synopsis  of  the  effect  of  the  Withdrawal  Acts  upon  the 
rights  of  prospectors  upon  the  public  domain  seems  to  be: 

1.  That  locations  of  lode  claims  may  be  made  upon  such 
lands  the  same  as  if  they  had  not  been  withdrawn. 

2.  That  placer  locations  upon  any  class  of  deposit  are  for- 
bidden. 

3.  That  the  right  to  the  claimant  of  any  kind  of  mining 
location  was  not  affected  where  a  possessory  right  was  com- 
plete at  the  date  of  withdrawal. 

4.  That  coal,  oil  and  gas  may  not  be  located  upon  or  claimed 
in  any  manner  after  date  of  withdrawal. 

5.  That  the  rights  of  oil  and  gas  claimants  at  the  date  of 
withdrawal  where  they  had  not  been  perfected  by  discovery, 
are  dependent  upon  their  being  actual  occupants  who  had 
begun  search  and  continued  it  with  diligence. 

6.  That  oil  and  gas  lands  may  be  patented  as  to  the  sur- 
face by  homestead  or  other  agricultural  claimants,  reserving 
to  the  government  such  minerals. 

Phosphate  and  Asphalt. 

By  Act  of  January  11,  1915,  location  of  phosphate  lands 
before  the  withdrawal  were  validated. — 38  Stat.  L.  792.  In 
the  A.  C.  of  1914,  above  cited,  phosphate,  nitrate,  potash  and 
asphaltic  lands  were  made  open  to  agricultural  entry  with 
reservation  of  such  minerals  to  the  United  States.  For  practice 
under  this  doctrine  of  severance  see  44  L.  D.  32,  45  L.  D.  77. 


ORE  CONTRACTS.  427 

ORE  CONTRACTS. 


An  ore  purchase  contract  between  mine  and  smelter  for  the 
sale  of  ore  is  not  assignable,  as  the  mine  contracts  for  the 
skill  and  integrity  of  that  particular  smelter. — Arkansas  Val. 
Sm.  Co.  v.  Belden  Co.,  127  U.  S.  379,  32  L.  Ed.  246,  8  Sup.  Ct. 
Rep.  1308 ;  Winchester  v.  Davis  Co.,  67  F.  45,  14  C.  C.  A.  300 ; 
Wheeler  v.  Walton  Co.,  64  F.  664. 

Failure  to  receive  pay  justifies  failure  to  make  future  de- 
liveries.— Cherry  Val  Co.  v.  Florence  Co.,  64  F.  569,  12 
C.  C.  A.  306. 

Delivery  of  ore  to  a  reduction  company,  to  be  paid  for  after 
assay,  is  a  sale  and  not  a  bailment  of  each  lot  of  ore. — Chisholm 
v.  Eagle  Ore  Co.,  144  F.  670,  75  C.  C.  A.  472. 

Action  for  conspiracy  between  officers  of  the  mine  and  mill 
owners  to  obtain  bonus  for  treating  the  ore — presumptions 
and  evidence  in  such  case. — Fox  v.  Hale  Co.,  108  Cal.  369,  41 
P.  308. 

A,  in  Michigan,  agreed  to  sell  to  plaintiff  graphite  ore  to 
be  delivered  on  cars  in  Mexico.  Held,  that  cause  of  action  for 
non-delivery  accrued  in  Mexico. — U.  S.  Graphite  Co.  v.  Pacific 
Co.,  68  F.  442. 

Construction  of  ore  contracts  calling  for  certain  percentages 
of  mineral  and  for  special  assay  values  with  deductions  for 
moisture— Trotter  v.  Heckscher,  40  N.  J.  Eq.  612,  4  Atl.  83, 
42  N.  J.  Eq.  251,  7  Atl.  353 ;  Lehigh  Co.  v.  Trotter,  43  N.  J.  Eq. 
185,  7  Atl.  650,  10  Atl.  607,  608;  Anvil  Co.  v.  Humble,  153 
U.  S.  540,  38  L.  Ed.  814,  14  Sup.  Ct.  Rep.  876,  18  M.  R.  98; 
Martinez  v.  Earnshaw,  143  Pa.  479,  22  Atl.  668.  Measure  of 
damages  for  failure  to  deliver  ore. — Patrick  v.  Colorado  Sm. 
Co.,  20  Colo.  268,  38  P.  236. 

Amount  of  moisture  is  determinable  by  tests  of  like  ore  from 
same  mine.— Vietti  v.  Nesbitt,  22  Nev.  390,  41  P.  151,  18 
M.  R.  247. 


428  ORE  CONTRACTS. 

The  smelter  is  not  liable  for  mineral  left  in  the  tailings, 
there  being  no  proof  of  negligence. — Guild  Co.  v.  Mason,  115 
Cal.  95,  46  P.  901. 

Where  an  average  of  a  certain  assay  is  to  be  accounted  for, 
one  month  may  make  up  for  another. — Fox  v.  Mactcay,  125 
Cal.  54,  57  P.  672,  20  M.  K.  89. 

Construction  of  contract  for  delivery  of  ore  "free  from 
foreign  substance." — Worthington  v.  Gunn,  119  Ala.  44,  43 
L.  R.  A.  382,  24  So.  739.  Of  ore  breaking  contract  terminable 
when  prejudicial  to  the  development  of  the  mine. — Anvil  Co. 
v.  Humble,  153  U.  S.  540,  38  L.  Ed.  814,  14  Sup.  Ct.  Rep.  876, 
18  M.  R.  98. 

When  the  buyer  refuses  to  receive,  the  seller  has  the  right 
to  store  the  ore  and  sue  for  the  price;  or  to  sell  the  ore  and 
recover  the  difference  in  price. — Habeler  v.  Rogers,  131  F.  43, 
65  C.  C.  A.  281. 

Contract  construed  to  bind  the  seller  to  furnish  the  ore  of 
its  own  mines.— Shackelford  v.  Sloss  Co.,  36  So.  1005,  140 
Ala.  329. 

A  contract  for  the  ore  of  a  certain  mine  entitles  the  buyer 
to  the  run  of  the  mine,  although  the  ore  tendered  from  another 
mine  was  not  below  the  agreed  assay. — Globe  Co.  v.  Tennessee 
Co.,  27  Ky.  Law  Rep.  636,  85  S.  W.  1177.  A  contract  to  fur- 
nish coal  from  a  particular  mine  is  not  fulfilled  by  tender  of 
coal  from  other  mines  though  equally  good. — Hesser  v.  Chicago 
Co.,  151  F.  211,  80  C.  C.  A.  263. 

Debts  Payable  Out  of  the  Mine. 

A  promise  to  pay  a  debt  out  of  the  proceeds  of  ore  is  not  an 
equitable  assignment  of  such  proceeds. — Silent  Friend  Co.  v. 
Abbot,  1  Colo.  App.  73,  42  P.  318. 

A  contract  or  promise  to  pay  out  of  the  proceeds  of  a  mine 
becomes  an  absolute  promise  after  the  lapse  of  a  reasonable 
time.— Mclntyre  v.  Ajax  Co.,  28  Utah  162,  77  P.  613 ;  White 
v.  Century  Co.,  28  Utah  331,  78  P.  868;  Busby  v.  Century  Co., 
27  Utah  231,  75  P.  725. 


ORE  CONTRACTS.  429 

An  agreement  to  pay  out  of  the  first  net  proceeds  of  the 
mine  means  the  first  excess  of  ore  receipts  above  current  ex- 
penses, and  those  outlays  which  constitute  the  capital  are  not 
to  be  deducted.— Crocker  v.  Barteau,  212  Mo.  359,  110  S.  W. 
1062. 

Where  the  assignee  of  a  mining  lease  agrees  to  pay  a  con- 
sideration therefor  out  of  the  net  proceeds  of  the  mine,  such 
assignee  is  not  bound  to  continue  work  at  a  loss  after  reasona- 
ble expenditures  show  that  net  proceeds  can  never  be  reasona- 
bly expected.— Caley  v.  Portland,  18  Colo.  App.  390,  71  P. 
892,  22  M.  R.  595. 

Where  defendant  agreed  to  pay  plaintiff  a  certain  propor- 
tion of  the  price  of  a  mine,  plaintiff  is  entitled  to  his  propor- 
tion of  stock  received  where  the  mine  is  paid  for  in  stock. — 
Kinard  v.  Jordan,  10  Cal.  App.  219,  101  P.  696. 

A  covenant  to  pay  out  of  proceeds  held  to  run  with  the 
mine. — Hinchman  v.  Cons.  Arizona  Co.,  198  F.  907. 

Where  purchase  price  is  to  be  paid  from  the  gross  output 
of  the  claims  defendant  can  not  escape  performance  by  will- 
fully neglecting  to  wrork.  And  if  the  mine  \vas  in  fact  barren 
the  burden  is  on  him  to  prove  it. — Pritchard  v.  McLeod.  205 
F.  24,  123  C.  C.  A.  332. 

A  party  bought  a  fourth  interest  in  mining  claims,  paying 
part  of  the  consideration,  the  balance  "to  be  part  of  the  first 
money  taken  out  of  the  ground."  Held,  that  this  meant  the 
gross,  not  net,  proceeds  of  the  buyer's  fourth  interest. — 
Lesamis  v.  Greenberg,  225  F.  449;  Blanch  v.  Pioneer  Co., 
(Wash.)  159  P.  1077. 

A  promise  by  the  owners  to  pay  for  service  in  operating  a 
mine  out  of  proceeds  of  sale  is  a  joint  and  several  contract. — 
Bell  v.  Adams,  90  P.  118,  150  Cal.  772. 


430  ORE  BUYERS. 

ORE  BUYERS. 


Ore  Book  to  Be  Kept. 

By  Act  of  1915,  supplanting  a  prior  similar  act,  every  ore 
buyer  is  required  to  take  out  a  State  License  and  to  keep  a 
book,  registering: 

First — The  name  of  the  party  on  whose  behalf  such  ores,  concentrates, 
gold  dust,  gold  or  silver  bullion,  nuggets  or  specimens  are  delivered. 

Second — The  weight  or  amount,  and  a  short  description  of  each  lot 
thereof. 

Third — The  name  and  location  of  the  mine  or  claim  from  which  it 
shall  be  stated  that  the  same  has  been  mined  or  procured. 

Fourth — The  name  of  the  party  delivering  the  same,  the  date  of  deliv- 
ery, and  whether  the  party  making  the  delivery  is  an  owner,  lessee,  super- 
intendent, foreman  or  workman  in  such  mine. 

These  provisions  supersede  R.  S.  §  4235  and  are  to  be  con- 
strued in  connection  with  the  sub-chapter  on  mines  entitled, 
Ore  Buyers,  Sees.  4235-4256.  Acts  of  1915,  p.  347. 

The  succeeding  sections  provide  that  parties  claiming  an 
interest  in  ore  delivered  shall  have  the  privilege  of  examining 
such  books  and  for  penalties  in  case  of  failure  to  keep  the 
same.  And  that  neglect  to  make  proper  inquiries  from  parties 
bringing  ore  to  the  mill  shall  not  excuse  failure  to  comply. 
They  also  attempt  to  make  the  purchaser  criminally  liable 
for  ore  bought  from  mines  held  "contrary  to  any  penal  law 
now  in  force,"  which  was  intended  to  include  cases  where 
possession  had  been  taken  by  violence,  contrary  to  the  pro- 
visions of  the  Jumping  Act.— R.  S.  Sees.  4220,  4239. 

Bullion  and  Specimen  Buyers. 

A  similar  act  refers  to  buyers  of  gold  'dust,  amalgam,  bullion 
and  gold  specimens,  the  intent  being  to  produce  means  to 
trace  such  property  when  stolen. — R.  S.  Sees.  4252-4255. 

Ore  Bought  of  Wrongful  Mine  Claimant. 

In  1889  the  question  of  the  responsibility  of  the  ore  buyer 
for  ore  taken  by  trespass  having  often  arisen  and  a  case  of 


ORE  BUYERS.  431 

some  importance  involving  the  question  then  pending  in  the 
Supreme  Court,  an  act  was  passed  providing  for  the  ease  of 
ore  taken  from  mines,  the  title  to  which  was  in  dispute. 

It  provides  that  a  party  in  peaceable  possession  under  claim 
and  color  of  title  is  to  be  deemed  the  owner,  and  the  buyer  of 
ore,  in  good  faith,  is  to  take  title  to  the  ore,  but  that  the  party 
out  of  possession  may  protect  himself  by  notice  to  the  ore 
buyer,  the  following  form  containing  the  substance  required: 

Denver,  Colo.,  January  9,  1916. 
To  The  Taylor  $  Brunton  Sampling  Works  Company: 

Take  notice  that  I  am  the  claimant  and  owner  and  entitled  to  the 
possession  of  the  Nightmare  Lode  Mining  Claim,  situate  in  Creede  Mining 
District,  County  of  Mineral,  State  of  Colorado;  That  Bichard  A.  Parker 
and  Thomas  B.  Crawford  and  persons  under  them  are  mining  and  ship- 
ping gold  ore  which  is  my  property,  from  said  claim  under  the  name  of 
the  Pleasant  Dream  Lode,  or  under  some  other  name.  And  you  are  hereby 
notified  under  the  terms  of  the  Statute  in  such  case  made  and  provided 
that  you  will  be  held  responsible  for  all  ores  purchased  and  delivered 
from  said  mine  by  said  Eichard  A.  Parker  and  Thomas  B.  Crawford,  or 
either  of  them,  or  by  any  person  for  them,  subsequent  to  the  service  of 
this  notice.  ERNEST  LE  NEVE  FOSTEB. 

The  person  serving  this  notice  must  within  five  days  there- 
after follow  it  up  with  suit  for  injunction,  and  provision  is 
made  to  limit  the  liability  in  case  the  injunction  is  not  heard 
within  thirty  days,  and  to  avoid  its  effect  if  the  writ  is  denied 
or  afterwards  discharged,  although  the  plaintiff  may  ulti- 
mately prove  title.  If  such  notice  is  served  and  followed  by 
obtaining  the  writ  and  the  party  warned  persists  in  buying 
the  ores  in  dispute,  he  is  to  be  held  responsible  to  the  person 
ultimately  adjudged  the  owner. 

If  suit  has  been  already  brought  when  the  notice  is  served, 
add  to  the  above  form:  (Sec.  4238.) 

Suit  is  pending  in  the  District  Court  of  Mineral  County  to  enjoin  the 
further  shipping  or  sale  of  ores  by  said  parties  from  said  claim. 

A  proviso  is  contained  in  the  Act  that  it  shall  not  protect 
against  liability  for  the  purchase  of  ores  taken  by  persons 
holding  claims  under  the  Mine  Jumping  Act,  or  ore  stolen  by 
lessees. 


432  PENAL  PROVISIONS. 

Ore  Mined  Under  Claim  of  Right. 

The  suit  above  referred  to,  Omalia  Co.  v.  Tabor,  16  M.  R. 
184,  13  Colo.  41,  16  Am.  St.  Rep.  185,  5  L.  R.  A.  236,  21  P. 
925,  was  decided  later,  holding  the  ore  buyers  liable  as  tres- 
passers— the  decision  making  no  reference  to  the  point  really 
involved  or  the  line  of  authorities  relative  to  the  point — that, 
where  personal  property  is  produced  from  real,  by  the  labor 
of  a  party  in  possession  with  claim  and  color  of  title,  it  be- 
comes marketable  without  regard  to  the  ultimate  decision  on 
the  question  of  who  was  the  owner  of  the  realty. — Brown  v. 
Caldwell,  12  M.  R.  674,  10  Serg.  &  R.  (Pa.)  114,  13  Am.  Dec. 
660;  Smith  v.  Idaho  Q.  M.  Co.,  2  Cal.  Unrep.  681,  11  P.  878; 
Mather  v.  Trinity  Church,  14  M.  R.  472,  3  Serg.  &  R.  (Pa.) 
509,  8  Am.  Dec.  663;  Lehigh  Co.  v.  New  Jersey  Co.,  55  N.  J.  L. 
350,  26  Atl.  920,  17  M.  R.  600 ;  Harlan  v.  Harlan,  15  Pa.  St. 
507,  53  Am.  Dec.  612 ;  Anderson  v.  Hapler,  34  111.  436,  85  Am. 
Dec.  318;  Page  v.  Fowler,  28  Cal.  605;  National  T.  Co.  v. 
Weston,  121  Pa.  485,  15  Atl.  569,  17  M.  R.  143 ;  Giffin  v.  South 
West  Pipe  Lines,  172  Pa.  580,  33  Atl.  578.  See  Pearce  v.  Aid- 
rich  M.  Co.,  184  Ala.  610,  64  So.  321. 

Smelters'  Rules. 

The  rule  of  a  smelting  company  that  ore  left  for  fifteen 
days  without  directions  where  to  apply  the  proceeds  should 
belong  to  the  smelter  without  payment  is  arbitrary  and  un- 
reasonable.— Cons.  Kansas  City  Co.  v.  Gonzales,  50  Tex.  Civ. 
79, 109  S.  W.  946. 


PENAL  PROVISIONS. 

False  Weights  and  Assays. 

There  are  in  all  the  mining  States  penal  statutes  more  or  less 
alike  in  wording  and  intent  prescribing  punishment  for  such 
self-evident  offenses  as  the  using  of  fraudulent  gold  dust 
scales  (Sec.  1851),  or  false  ore  buyers'  weights  and  scales,  or 


PENAL  PROVISIONS.  433 

the  certifying  to  false  assays  or  making  false  return  of  ore 
weight  or  value.— -R.  S.  Colo.  Sec.  4240. 

Debased  Gold  Dust. 

Sections  1708,  1709,  make  it  penal  to  knowingly  have  or  pass 
debased  gold  dust.  In  People  v.  Page,  1  Ida.  102,  the  defend- 
ant was  convicted  on  indictment  for  having  in  possession 
instruments  for  manufacturing  bogus  gold  dust.  In  People  v. 
Sloper,  1  Ida.  158,  and  People  v.  Page,  1  Ida.  189,  the  offense 
of  uttering  such  material  is  discussed. 

Salting  Ore. 

That  every  person  who  shall  mingle  or  cause  to  be  mingled  with  any 
sample  of  gold  or  silver-bearing  ore,  any  valuable  metal  or  substance 
whatever  that  will  increase  or  in  any  way  change  the  value  of  said  ore, 
with  the  intent  to  deceive,  cheat  or  defraud  any  person  or  persons,  shall, 
on  conviction  thereof,  be  punished  by  a  fine  of  not  less  than  five  hundred 
nor  more  than  one  thousand  dollars,  or  by  confinement  in  the  penitentiary 
for  a  term  not  less  than  one  nor  more  than  fourteen  years,  or  by  both 
such  fine  and  imprisonment. — E.  S.  Colo.  Sec.  1863. 

Ore  Stealing  from  the  Mine. 

If  any  person  shall  break,  sever  or  separate  with  intent  to  steal,  ore 
or  mineral  from  any  mine,  lode,  ledge  or  deposit  in  this  State,  or  shall 
take,  remove  or  conceal  ore  or  mineral  from  any  mine,  lode,  ledge,  deposit 
or  dump  with  intent  to  defraud  the  owner  or  owners,  lessee  or  licensee,  or 
any  tenant  in  possession  of  any  mine,  lode,  ledge,  deposit  or  dump,  or  any 
person  in  possession  and  claiming  under  color  of  title  any  mine,  lode, 
ledge,  or  dump,  such  person  shall  be  deemed  guilty  of  grand  larceny,  and 
upon  conviction  shall  be  punished  as  for  grand  larceny. — E.  S.  Colo.  Sec. 
1680. 

The  above  section  amends  the  Act  of  1903,  which  was  lim- 
ited to  ore  of  the  value  of  $20. 

By  Colorado  Act  of  1909,  p.  451,  stealing  ore  or  concen- 
trates from  any  smelter  or  reduction  works  is  made  grand 
larceny. 

Robbing  a  sluice  box  is  an  extraditable  crime. — Tiberg  v. 
Warren,  192  F.  458,  112  C.  C.  A.  596. 


434  PENAL  PROVISIONS. 

Trespass  Not  Larceny. 

Except  as  modified  by  such  statutes  as  said  section  1680,  the 
taking  of  ore  by  severing  it  from  the  realty  accompanied  by 
its  immediate  asportation,  can  in  no  case  be  considered  larceny. 
—People  v.  Williams,  35  Cal.  671,  4  M.  R.  185 ;  State  v.  Kerry- 
man,  8  Nev.  262,  4  M.  R.  199 ;  State  v.  Burt,  4  M.  R.  190,  64 
N.  C.  619. 

This  distinction  is  in  some  of  the  cases  referred  to  as  unsub- 
stantial and  technical,  although  its  force,  as  decided  law, 
is  not  questioned.  On  the  contrary,  it  is  a  distinction  neces- 
sary to  check  the  constant  tendency  to  seek  a  criminal  remedy 
where  the  civil  remedy  is  ample.  Excepting  the  instance  of 
what  is  known  as  "high-grading"  the  severance  is  wholly 
without  felonious  intent. 

Injunction  Against  Buying  High-grade. 

Such  a  writ  was  allowed  against  a  purported  assayer  who 
in  fact  was  a  receiver  for  high-grade  ore  stolen  from  the  mines 
at  Goldfield,  Nev.—Goldfield  Co.  v.  Richardson,  194  F.  198. 
But  equity  jurisdiction  in  a  like  case  was  denied  in  Daniels  v. 
Portland  M.  Co.,  202  F.  637,  121  C.  C.  A.  47,  45  L.  R.  A. 
(N.  S.)  827. 

Moving  Stakes. 

The  malicious  removal  of  location  marks  is  made  a  mis- 
demeanor by  the  terms  of  R.  S.  Colo.  Sec.  1899. 

Under  a  statute  on  this  subject  it  was  held  that  there  must 
be  proof  of  a  lawful  stake  on  a  valid  mining  claim — and  that 
where  the  only  proof  of  discovery  was  that  the  stake  was 
posted  after  finding  "quartz  and  vein  matter,"  there  was  no 
proof  of  a  valid  location  stake,  such  as  the  law  was  intended  to 
protect— Territory  v.  Mackeij  (McKey),  8  Mont.  168,  19  P. 
395. 


PENAL  PROVISIONS.  435 

Malicious  Mischief. 

By  R.  S.  Colo.  1900,  it  is  made  a  misdemeanor  to  unlawfully 
destroy  any  shaft-guard  or  remove  the  timbers  from  any 
shaft,  incline  or  tunnel. 

Cutting  Timber  or  Removing  Buildings. 

Besides  the  section  as  to  malicious  mischief  there  are  two 
sections  harsh  and  cruel,  in  defining  mere  trespass  into  crime, 
by  leaving  out  entirely  the  element  of  malice  or  other  criminal 
intent,  making  the  cutting  of  timber  or  removing  of  buildings 
a  misdemeanor. — Sfccs.  4222,  4223.  The  strictest  construction 
against  it  has  been  heretofore  given  to  a  statute  of  similar 
wording.— Bradley  v.  People,  8  Colo.  599,  9  P.  783. 

Jumping  Claims  by  Stealth  or  Violence. 

R.  S.  Colo.  4220,  passed  in  1874,  prohibits  acts  of  this  char- 
acter. The  Act  consists  of  a  single  paragraph  of  interminable 
length.  It  makes  the  association  pf  two  or  more  persons  for 
the  purpose  of  taking  possession  of  a  claim  in  possession  of 
another,  by  stealth  or  violence,  a  misdemeanor.  The  section  is 
intended  to  prevent  what  has  commonly  been  termed  "jump- 
ing," which  word  is  met  with  in  some  of  the  old  statutes  as 
well  as  in  the  district  rules,  and  occasionally  in  law  reports. — 
Arnold  v.  Baker,  1  M.  R.  Ill,  6  Neb.  134;  Murphy  v.  Cobb, 
5  M.  R.  330,  5  Colo.  281.  As  a  penal  statute  it  is  awkwardly 
framed,  and  the  substantial  remedy  is  by  a  section  passed  at 
the  same  time,  by  which  possession  is  restored  to  the  party 
forcibly  dispossessed. — See  p.  471. 

Coal  Mines  Are  Regulated  by  Detailed  Local  Statutes  in 

almost  every  State  involving  inspection  and  attempting  to 
guard  against  explosions  and  other  dangers. — R.  S.  Colo.  Sees. 
638-660.  Such  regulations  are  generally  upheld  as  ^constitu- 
tional.—.Ratf  &  River  Coal  Co.  v.  Yaple,  236  U.  S.  338,  59 
L.  Ed.  607,  35  Sup.  Ct.  Rep.  359. 

f 


436  EJECTMENT. 

Oil   Wells    Are   Required  to   Keep   Their   Products    from 
emptying  into  any  natural  water  course. — R.  S.  Colo.  1818. 

Ventilation — Children. 

The  Colorado  Constitution,  Art.  16,  Sec.  2,  requires  the 
passage  of  laws  securing  safety  escapes  and  ventilation  in 
mines. 

The  acts  on  these  subjects  are  cited  under  BUREAU  OF  MIXES, 
p.  481. 

The  employment  of  children  under  fourteen  years  of  age 
is  forbidden  by  K.  S.  Sec.  547. 

The  eight-hour  law  applies  to  underground  miners,  to  smelt- 
ers and  other  ore-treating  processes. 


EJECTMENT. 


Pleadings. 

Under  Code  practice  the  names  of  the  various  actions  are 
abolished,  but  the  distinctions  being  inherent,  the  term  eject- 
ment has  its  specific  application  the  same  as  formerly. 

Section  286  Colo.  Code  requires  a  concise  statement  in  the 
complaint  of  the  nature  of  the  title  when  possessory. 

The  case  of  National  M.  Co.  v.  Piccolo  clearly  states  the 
essentials  and  non-essentials  of  a  complaint  in  ejectment. — 54 
Wash.  617,  104  P.  128. 

Discovery  need  not  be  alleged  in  a  pleading.  It  is  a  matter 
of  evidence.— Protective  Co.  v.  Forest  City  Co.,  51  Wash.  643, 
99  P.  1033. 

Ground,  Mineral  or  Non-Mineral. 

In  Duffield  v.  San  Francisco  Chemical  Co.,  198  F.  942,  the 
Court  refused  to  allow  any  evidence  as  to  whether  the  ground 


EJECTMENT.  437 

was  properly  locatable  as  a  placer  or  as  a  lode  claim,  holding 
that  issue  to  be  exclusively  triable  in  the  Land  Office.  See 
p.  252.  But  in  a  later  suit  between  the  same  parties  concern- 
ing other  ground,  the  Circuit  Court  of  Appeals,  without  citing 
the  former  case,  held  that  determination  of  this  point  was 
necessarily  involved  and  must  be  determined  as  it  was  by  the 
Court.— Sa n  Francisco  Chemical  Co.  v.  Duffield,  201  F.  830, 
120  C.  C.  A.  160. 

Supporting  Adverse  Claims. 

It  is  the  proper  action  to  bring,  and  the  one  in  fact  generally 
brought  in  support  of  an  adverse  claim. — Becker  v,  Pugh,  15 
M.  R.  304,  9  Colo.  589,  13  P.  906;  Burke  v.  McDonald,  2  Ida. 
310,  13  P.  351.  In  such  suit  it  is  immaterial  which  party  is  in 
actual  possession  at  the  time  when  the  action  was  brought. — 
Id.  And  no  proof  of  an  ouster  is  required. — Golden  Fleece 
Co.  v.  Cable,  Go.,  1  M.  R.  120, 12  Nev.  312.  Or  each  party  may 
be  in  possession  of  a  part  of  the  contested  premises. — Rose  v. 
Richmond  Co.,  17  Nev.  25,  27  P.  1105.  Notifying  defendant 
not  to  work  is  an  ouster. — Bramlett  v.  Flick,  23  Mont.  95,  57 
P.  869,  20  M.  R.  103. 

The  object  of  the  suit  is  to  determine  the  right  of  possession, 
and  the  result  is  to  decide  which  party  is  entitled  to  a  patent 
from  the  United  States.  The  government  being  thus  an  inter- 
ested party,  each  side  must  prove  its  own  case  affirmatively, 
and  to  either  recover  or  successfully  defend  must  show  a 
valid  location. — Bay  Stale  Co.  v.  Brown,  21  F.  167;  Jackson 
v.  Roly,  109  U.  S.  440,  27  L.  Ed.  990,  3  Sup."  Ct.  Rep.  301; 
McGinnis  v.  Egbert,  8  Colo.  41,  5  P.  652,  15  M.  R.  329 ;  Rosen- 
thai  v.  Ives,  15  M.  R.  324,  2  Ida.  265,  12  P.  904.  Neither  party 
is  entitled  to  a  verdict  upon  mere  proof  of  prior  possession 
alone — as  is  the  rule  in  a  contest  where  individuals  only  are 
interested.— Sears  v.  Taylor,  5  M.  R.  318,  4  Colo.  38.  But 
possession  alone  is  good  against  an  intruder,  especially  one 
who  enters  by  violence. — Haws  v.  Victoria  Co.,  160  U.  S.  303, 
40  L.  Ed.  436,  16  Sup.  Ct.  Rep.  282.  Possession  may  become 
incidentally  a  material  issue  in  the  case. — See  ADVERSE  CLAIM. 


438  EJECTMENT. 

Averment  of  Suit  Brought  in  Time. 

In  a  complaint  carefully  and  technically  drawn  there  will 
be  an  averment  that  the  adverse  claim  was  filed  within  the 
period  of  publication  and  the  suit  brought  within  the  30  days, 
but  both  the  right  of  the  thing  and  the  weight  of  authority  are 
that  they  are  not  essential  averments.  If,  in  fact,  the  adverse 
claim  was  not  filed  or  the  suit  not  brought  within  these 
respective  limited  periods  it  is  a  matter  of  defense  to  be  raised 
by  the  answer.— Providence  Co.  v.  Marks,  7  Ariz.  74,  60  P.  938 ; 
MarsJiall  Co.  v.  Kirtley,  12  Colo.  410,  417,  21  P.  492,  16  M.  R. 
6 ;  Altoona  Co.  v.  Integral  Co.,  45  P.  1047, 114  Cal.  100 ;  Penn- 
sylvania Co.  v.  Bales,  18  Colo.  App.  108,  70  P.  444,  22  M.  R. 
436 ;  Rain  v.  Mattes,  34  Colo.  345,  83  P.  127. 

No  Second  Suit. 

If  suit  be  dismissed  a  second  suit  can  not  be  brought  after 
the  expiration  of  the  thirty  days. — Steves  v.  Carson,  16  M.  R. 
12,  42  F.  821 ;  and  if  not  filed  in  time  the  suit  can  not  be 
supported  as  an  ordinary  ejectment. — Hunt  v.  Eurekp  Gulch 
Co.,  14  Colo.  451,  24  P.  550,  17  M.  R.  340. 

Second  Trial. 

At  common  law  a  verdict  in  ejectment  was  not  res  adjudicata 
of  the  title,  and  repeated  suits  were  liable  to  be  brought.  As  a 
compromise  on  this  point  some  States  allowed  a  second  trial 
as  of  right  on  payment  of  costs  of  the  first  suit,  the  judgment 
in  such  second  suit  to  be  final  if  in  favor  of  the  same  party. 
In  other  words,  there  must  be  two  verdicts  for  the  same  party 
to  make  the  adjudication  decisive.  Such  statutory  new  trial  in 
Colorado  has  been  abolished  since  1899  and  is  not  generally 
now  provided  for  elsewhere.  A  second  trial  for  errors  of  law 
may  of  course  be  granted. 

Possession  Without  Location— Location  Without  Discovery. 

The  Congressional  Act,  Sec.  2320,  says  that  "no  location  of 
a  mining  claim  shall  be  made  until  the  discovery  of  the  vein." 
And  in  sequence  to  this  it  has  been  ruled  that  if  there  is  no 


EJECTMENT.  439 

valid  location  there  can  be  no  rightful  possession. — Belk  v. 
Meagher,  1  M.  E.  510,  104  U.  S.  279,  26  L.  Ed.  735 ;  Sweet  v. 
WeUer,  1  Colo.  443,  450,  4  P.  752;  Cook  v.  Klonos,  164  F.  529, 
90  C.  C.  A.  403.  A  prospector,  at  least  after  he  has  discovered 
mineral,  has  the  right  to  be  undisturbed  in  whatever  shaft  or 
other  work  he  is  prosecuting. — Faxon  v.  Barnard,  4  F.  702, 
2  McCrary  44,  9  M.  R.  515.  But  only  by  compliance  with  the 
statute  (by  a  valid  location)  can  he  prevent  other  prospectors 
from  entering  upon  any  ground  except  that  in  his  actual  occu- 
pation.—tfecfcer  v.  Pugh,  15  M.  R.  304,  9  Colo.  589,  13  P.  906. 
The  posting  of  notice  without  discovery  or  indications  of 
mineral  can  not  warn  off  other  prospectors. — Erhardt  v.  Boaro, 
113  U.  S.  537,  28  L.  Ed.  1116,  5  Sup.  Ct.  565,  15  M.  R.  447. 
He  may  protect  himself  in  his  pedis  possessio  (the  ground  in 
actual  as  distinguished  from  constructive  possession),  while 
in  the  search  for,  before  he  has  discovered,  mineral.  And  as 
against  another  miner,  where  neither  has  discovered  a  vein, 
he  has  the  better  right— Field  v.  Grey,  1  Ariz.  404,  25  P.  793. 

The  question  which  these  citations  lead  up  to  is  this :  Can  a 
prospector,  before  discovering  mineral,  stake  off  a  full  claim 
and  keep  off  all  other  prospectors  while  he  is  engaged  in 
hunting  for  mineral  ?  In  other  words,  can  he  set  up  his  stakes 
first  and  make  his  discovery  afterward  on  the  supposition  that 
when  he  does  strike  the  vein  his  stakes  already  set  will  be  found 
to  cover  the  legal  width  on  each  side  f  Can  he,  in  spite  of  the 
law  which  says  he  can  not,  make  a  valid  location  before  dis- 
covery; or,  which  is  the  same  thing,  have  all  the  practical 
benefits  of  a  location,  before  such  discovery?  The  cases  go  to 
the  length  of  protecting  his  actual  workings — and  this  would 
prevent  encroachment  so  close  as  to  hinder  work  or  threaten  a 
breach  of  the  peace.  The  Boaro  case  seems  to  intimate  that  he 
may  protect  himself  when  at  work  on  float,  or  after  substantial 
assurance  of  the  proximity  of  the  lode.  In  the  Field  case  the 
point  is  approached  and  almost  decided,  that  he  may  hold  by 
location  without  discovery.  The  burden  of  the  other  cases  and 
the  text  of  the  law  are  .against  the  proposition — that  staking  a 
claim  before  discovery  excludes  other  prospectors.  All  have 


440  EJECTMENT. 

the  same  right  to  seek  till  one  has  found ;  no  one  has  a  right  to 
fence  out  others  from  the  right  of  seeking  what  he  himself  is 
only  seeking.  See  pp.  27,  34. 

The  party  who  is  the  first  to  comply  with  the  law  though  he 
may  not  be  the  first  discoverer  holds  the  first  title. — Sisson  v. 
Sommers,  19  M.  R.  644,  24  Nev.  379,  77  Am.  St.  Rep.  815, 
55  P.  829 ;  Lockhart  v.  Johnson,  181  U.  S.  516,  527,  45  L.  Ed. 
979,  985,  21  Sup.  Ct.  665;  Copper  Globe  Co.  v.  Allman,  21 
M.  R.  296,  23  Utah  410,  64  P.  1019 ;  Gregory  v.  Pershbaker, 
]5  M.  R.  602,  73  Gal.  109,  14  P.  401;  Ferns  v.  McNally,  45 
Mont.  20,  121  P.  889,  890. 

Prior  possession  is  better  title  than  an  invalid  location. — 
Connolly  v.  Hughes,  18  Colo.  App.  372,  71  P.  681. 

The  right  of  possession  is  a  transferable  interest. — Eooney  v. 
Barnette,  200  F.  700,  119  C.  C.  A.  116.  When  neither  party 
has  a  valid  location  possession  is  good  title  in  the  claimant. — • 
Protective  Co.  v.  Forest  City  Co.,  51  Wash.  643,  99  P.  1033. 

Possession — How  Proved. 

A  person  who  has  purchased  a  mining  claim  which  has  been 
properly  located  and  marked  out  upon  the  ground,  and  who 
is  personally  or  by  his  agents  upon  the  claim,  working  and 
developing  it,  and  keeping  up  the  boundary  stakes  and  marks 
thereof,  is  not  merely  in  the  constructive  possession  of  such 
claim  by  virtue  of  mining  laws,  but  is  in  the  actual  possession 
of  the  whole  claim.  Such  possession  is  a  possessio  pedis,  extend- 
ing to  the  boundary  lines  of  the  claim. — North  Noonday  Co. 
v.  Orient  Co.,  1  F.  522,  6  Sawy.  299,  9  M.  R.  529,  531.  Digging 
a  shaft,  building  a  cabin,  etc.,  held  proof  of  possession. — Koons 
v.  Bryson,  69  F.  297,  16  C.  C.  A.  227. 

Actual  occupation  of  a  part  of  the  claim  under  papers  call- 
ing for  the  entire  tract  by  metes  and  bounds,  or  by  the  name  of 
the  claim,  gives  constructive  possession  of  the  entire  tract. — • 
Harris  v.  Equator  Co.,  12  M.  R.  178,  8  F.  863,  3  McCrary  14 ; 
Attwood  v.  Fricot,  17  Cal.  37,  38,  76  Am.  Dec.  567,  2  M.  R. 
305 ;  Hess  v.  Winder,  12  M.  R.  217,  30  Cal.  349. 


EJECTMENT.  441 

Possession  is  a  question  of  law. — Jordan  v.  Duke,  4  Ariz.  278, 
36  P.  896.  A  witness  must  testify  to  facts,  and  it  is  for  the 
Court  to  say  whether  these  facts  amount  to  possession. — Thistle 
v.  Frostburg  Co.,  10  Md.  129.  But  the  uniform  holding  of  the 
United  States  Court,  at  Denver,  has  been  that  the  question  as 
to  possession  may  be  asked  directly,  leaving  it  to  the  cross- 
examination  to  bring  out  whether  the  facts  stated  amount  to 
possession,  and  this  is  the  more  sensible  practice. 

The  possession  of  the  surface  enclosing  the  apex  is  the  pos- 
session of  the  vein  wherever  the  dip  may  carry  it— Montana 
Co.  v.  St.  Louis  Co.,  102  F.  430,  431,  42  C.  C.  A.  415,  20  M.  R. 
507.  A  prospector  drilling  for  oil  is  in  possession  .and  eject- 
ment is  the  remedy  to  test  his  right  of  possession. — Cosmos  Co. 
v.  Gray  Eagle  Co.,  112  F.  4,  50  C.  C.  A.  79,  61  L.  R.  A.  230 ; 
Aff'd  190  U.  S.  301,  47  L.  Ed.  1064,  23  Sup.  Ct.  692,  24 
Sup.  Ct.  860. 

The  owner  of  a  patented  claim  is  presumed  to  be  in  posses- 
sion of  all  the  surface  within  the  patent  lines. — Original  C.  Co. 
v.  Abbott,  167  F.  681. 

After  location  is  completed  the  locator  is  not  bound  to 
remain  in  actual  possession  of  the  property. — Holdt  v.  Hazard, 
10  Cal.  App.  440,  102  P.  540. 

Where  a  statute  speaks  of  parties  in  possession,  it  means 
that  constructive  possession  which  the  law  attaches  to  the  title. 
—Heinze  v.  Butte  Co.,  126  F.  1,  61  C.  C.  A.  63.  A  mine  claim- 
ant is  in  possession  to  his  boundaries,  although  he  may  not 
know  where  his  boundaries  are. — Molina  v.  Luce,  9  Ariz.  29,  76 
P.  602.  A  party  may  be  in  legal  possession,  though  not  person- 
ally on  the  land  at  the  time  of  a  stranger's  entry. — Davis  v. 
Dennis,  43  Wash.  54,  85  P.  1079. 

Living  in  a  tent  on  the  claim  and  working  on  the  same  con- 
stitute actual  possession'  of  mining  ground. — Lange  v.  Robin- 
son, 148  F.  799,  79  C.  C.  A.  1. 


442  EJECTMENT. 

What  Is  Not  Possession. 

Surreptitious  running  of  a  drift  under  the  lines  of  the  claim 
of  another  does  not  constitute  possession  of  such  claim. — 
Badger  Co,  v.  Stockton  Co.,  139  F.  838. 

Sinking  an  old  shaft  a  few  feet  deeper  and  no  other  work 
done  during  a  period  of  seven  years  does  not  amount  to  pos- 
session.— Costello  v.  Muheim,  9  Ariz.  422,  84  P.  906. 

Digging  of  test  pits  by  claimant  of  the  severed  mineral  estate 
is  not  such  possession  as  amounts  to  notice. — Kendrick  v.  Col- 
yar,  143  Ala.  597,  42  So.  110. 

Right  to  Defend  Possession. 

A  party  in  possession  may  defend  by  force  against  persons 
claiming  the  premises  and  attempting  to  oust  him,  and  even 
the  rightful  owner  can  not  invade  such  possession  by  force. — • 
Hickey  v.  U.  8.,  168  F.  536,  93  C.  C.  A.  616,  22  L.  R.  A. 

(N.  S.)  728. 

An  Equitable  Defense  May  Be  Set  Up  in  Ejectment. — 

South  End  Co.  v.  Tinney,  22  Nev.  19,  35  P.  89.  Such  defense 
must  be  specially  pleaded. — Brady  v.  Husby,  21  Nev.  453,  33 
P.  801. 

A  mine  owner's  admission  that  he  had  no  title  may  be 
explained  by  his  misapprehension  of  the  law  of  the  case. — 
Crary  v.  Dye,  208  U.  S.  515,  52  L.  Ed.  595,  28  Sup.  Ct.  360. 

Title  in  Third  Party. 

The  rule  that  plaintiff  must  recover  on  the  strength  of  his 
own  title  does  not  prevail  in  an  action  between  possessory 
claimants.— Strepey  v.  Stark,  7  Colo.  614,  622,  5  P.  Ill,  17 
M.  R.  28 ;  Murray  Co.  v.  Havenor,  24  Utah  73,  66  P.  762,  21 
M.  R.  668.  Otherwise,  as  to  parties  claiming  under  patent,  or 
in  ordinary  contests  as  to  legal  title. — Dyke  v.  Whyte,  17  Colo. 
296,  29  P.  128.  A  patentee  has  no  right  to  disturb  any  person 
in  possession  of  ground  under,  but  excluded  from,  his  patent. 


EJECTMENT.  443 

—Reynolds  v.  Iron  Silver  Co.,  15  M.  R.  591,  116  U.  S.  637,  29 
L.  Ed.  774,  6  Sup.  Ct.  601. 

The  Location  Certificate  as  Evidence— Presumption  of  Loca- 
tion. 

Where  a  plaintiff  has  been  in  actual  possession  of  his  claim 
for  the  full  period  of  the  Statute  of  Limitations  a  presumption 
may  be  indulged  as  against  a  wrongdoer  at  least,  that  his  loca- 
tion was  regularly  made,  without  putting  him  to  proof  of  its 
successive  steps. — Harris  v.  Equator  Co.,  supra;  cited  and 
approved  in  Vogel  v.  Warsing,  146  F.  949,  77  C.  C.  A.  199. 
When  the  location  has  been  made  for  a  considerable  time  and 
is  held  by  ~bona  fide  purchasers  the  location  certificate  is  prima 
facie  evidence  of  discovery  and  location. — Cheesman  v.  Hart, 
16  M.  R.  263,  42  F.  98;  Yreka  Co.  v.  Knight,  133  Cal.  544,  65 
P.  1091,  21  M.  R.  478.  In  Cheesman  v.  Shreeve,  40  F.  787, 
791,  17  M.  R.  260,  it  was  held  presumptive  evidence  of  dis- 
covery. It  is  evidence  of  the  performance  of  all  things  which 
the  statute  requires  it  to  recite. — Bismarck  Co.  v.  N.  Sunbeam 
Co.,  14  Ida.  516,  95  P.  14;  Strepey  v.  Stark,  1  Colo.  614,  619, 
5  P.  Ill,  17  M.  R.  28. 

Exact  evidence  of  all  details  is  not  to  be  expected  in  proof  of 
discovery  and  location  made  many  years  before  the  time  of 
trial.— Becker  v.  Pugh,  17  Colo.  243,  245,  29  P.  173 ;  Yreka  Co. 
v.  Knight,  21  M.  R.  478,  65  P.  1091, 133  Cal.  544. 

But  in  the  absence  of  a  statute  to  such  effect  and  barring  the 
above  exceptional  instances  it  does  not  prove  discovery  or  the 
several  acts  of  location. — Niles  v.  Kennan,  27  Colo.  502,  62  P. 
360,  21  M.  R.  33 ;  Mutchmor  v.  McCarty,  149  Cal.  603,  87  P.  85 ; 
Thomas  v.  South  Butte  Co.,  211  F.  105,  106,  128  C.  C.  A.  33; 
Childers  v.  Laliann,  19  N.  M.  301, 142  P.  924. 

By  statute  in  Nevada  and  Montana  the  location  certificate  is 
prima  facie  evidence  of  location. 

Supplemental  Record  in  California. 

By  the  statute  of  California,  in  force  since  July  1,  1909,  it  is 
provided  (Sec.  1426  I.),  that  the  holder  of  a  possessory  claim 


444  EJECTMENT. 

may  have  his  boundaries  and  corners  established  by  a  U.  S. 
Deputy  Mineral  Surveyor,  or  a  licensed  surveyor  of  the  State, 
and  his  claim  connected  with  some  corner  of  a  United  States 
survey.  He  may  then  record  a  declaratory  statement  (equiva- 
lent to  a  second  location  certificate)  containing  the  field  notes 
of  such  survey  with  the  certificate  of  the  surveyor  stating : 
First,  that  said  survey  was  actually  made  by  him,  giving  the 
date  thereof.  Second,  the  name  of  the  claim  surveyed  and  the 
location  thereof.  Third,  that  the  description  incorporated  in 
the  declaratory  statement  is  sufficient  to  identify. 

Such  record  is  made  prima  facie  evidence  "of  the  facts 
therein  contained,"  i.  e.,  it  becomes  prima  facie  proof  of  the 
discovery  and  all  acts  of  location. 

Right  to  Jury  Trial. 

Where  a  party  is  in  peaceable  possession  of  real  estate  under 
contention  that  he  is  the  lawful  owner  of  the  same,  he  has  the 
conceded  right  to  trial  by  jury  before  he  can  be  legally  ousted 
therefrom.— Atkinson  v.  J.  R.  Crowe  M.  Co.,  80  Kan.  161, 
18  Ann.  Gas.  242,  39  L.  R.  A.  (N.  S.)  31,  102  P.  50,  106 
P.  1052. 

But  where  he  is,  at  the  same  time,  removing  mineral  from 
the  land  he  may  become  the  defendant  in  an  injunction  suit 
which  is,  of  course,  an  equity  proceeding. 

Conceding  the  jurisdiction  of  an  equity  court  in  such  case 
to  proceed  without  trial  by  jury  to  afford  the  injunctive  relief, 
does  the  mere  fact  that  equity  has  jurisdiction  to  preserve  the 
property  give  it  the  right  to  try  the  title  also  and  deny  to 
defendant  his  right  of  trial  by  jury  ?  Such  question,  it  seems 
to  us,  ought  to  answer  itself — that  the  plaintiff  by  mere  choice 
of  his  form  of  action  can  not  deprive  the  defendant  of  his  right 
of  jury  trial.— Golden  Cycle  Co.  v.  Christmas  Co.,  204  F.  939, 
123  C.  C.  A.  261. 

But  there  are  cases  which  seem  to  allow  the  prayer  for 
injunctive  relief  to  take  away  the  defendant's  constitutional 
right  of  trial  by  jury.—Essetslyn  v.  U.  S.  Corp.,  59.  Colo.  294, 
149  P.  93. 


EJECTMENT.  445 

Jurisdiction  in  equity  to  enjoin  does  not  give  jurisdiction  to 
quiet  title  in  favor  of  a  plaintiff  out  of  possession. — United 
States  Min.  Co.  v.  Lawson,  115  F.  1005.  But  the  right  to  jury 
trial  may  be  waived  when  objection  is  not  made  below.  El  Dora 
Oil  Co.  v.  United  States,  229  F.  946. 

Maps  and  Models. 

Where  evidence  can  be  understood  only  by  reference  to  maps 
and  the  maps  are  not  preserved  in  the  bill  of  exceptions,  the 
bill  does  not  contain  all  the  evidence,  notwithstanding  its  asser- 
tion to  that  effect. — Diamond  Co.  v.  Cutjibertson,  (Ind.  App.) 
67  N.  E.  558. 

Cost  of  map  may  be  taxed  as  costs. — Kelly  v.  Butte,  44  Mont. 
115,  119  P.  171.  A  map  made  for  a  party  to  the  suit  may  be 
used  as  evidence  against  it. — Liberty  Bell  Co.  v.  Smuggler 
Union  Co.,  203  F.  795,  796, 122  C.  C.  A.  113.  The  jury  should 
be  allowed  to  take  the  model  to  the  jury  room. — Illinois  Co.  v. 
Raff,  1  N.  M.  336,  34  P.  544. 

Ejectment   Lies   to   Recover   Ditch   and   Water   Rights.— 
Integral  Co.  v.  Altoona  Co.,  75  F.  379,  21  C.  C.  A.  409. 

Non-Joinder  of  Co-Tenant.  » 

It  is  no  defense  that  all  of  plaintiff's  co-owners  are  not  made 
parties  to  the  suit.— Weese  v.  Barker,  7  Colo.  178,  2  P.  919  j 
Erliardt  v.  Boaro,  15  M.  R.  472,  473,  113  U.  S.  527,  28  L.  Ed. 
1113,  5  Sup.  Ct.  560.  One  co-tenant  may  recover  the  whole 
estate  in  ejectment  against  strangers. — King  Solomon  Co.  v. 
Mary  Verna  Co.,  22  Colo.  App.  528,  127  P.  129,  130. 

Allowance  for  Improvements. 

A  defendant  holding  by  bona  fide  claim  of  title  is  by  statute 
in  instances  to  be  allowed  for  improvements.  But  mining  is 
not  necessarily  an  improvement. — Bacon  v.  Thornton,  16  Utah 
138,  51  P.  153.  Such  allowance  is  expressly  forbidden  by 
Colorado  Code,  Sees.  277,  291. 


446  FORCIBLE  ENTRY— MEASURE  OF  DAMAGES. 

FORCIBLE  ENTRY. 

The  acts  concerning  forcible  entry  and  unlawful  detainer 
apply  to  possessory  as  well  as  other  claims ;  but  those  acts  are 
so  involved,  and  so  abrupt  and  cruel  in  their  attempt  to  sub- 
stitute haste  for  deliberation,  that  they  result  in  driving  to 
appeals  and  in  the  end  to  more  lengthy  and  costly  litigation 
than  where  ejectment  is  resorted  to  in  the  first  instance. 

Like  acts  in  other  States — the  repeated  attempts  by  sum- 
mary process  to  deprive  a  defendant  of  his  day  in  court  under 
pretense  of  doing  speedy  justice — are  open  to  the  same  com- 
ment. Except  as  against  a  tenant  holding  over  in  defiance  of 
his  lease  or  refusing  the  payment  of  royalty  or  rent,  this  action 
will  always  be  found  a  dangerous  substitute  for  the  ordinary 
action  of  ejectment.  Especially  is  this  the  case  where  actions 
are  commenced  before  justices  of  the  peace,  before  whom  pro- 
ceedings are  so  vexatious,  oppressive,  and  attended  with  so 
much  heavier  costs  than  such  as  accrue  in  Courts  of  Record, 
that  it  is  rarely  advisable  to  seek  the  remedy  for  any  wrong, 
in  any  form  of  action,  before  them. 


MEASURE  OF  DAMAGES. 

Trespass  for  Ore  Taken. 

The  true  measure  of  damages  depends  upon  circumstances 
of  aggravation,  ranging  from  the  profits  of  working  to  the 
gross  value  of  the  ore  after  breaking  from  the  stope,  or  even 
down  to  its  value  in  place  before  breaking. — Empire  Co.  v. 
Bonanza  Co.,  67  Cal.  406,  7  P.  810 ;  In  re  United  Merthyr  Co., 
10  M.  R.  153,  L.  R.  15  Eq.  46 ;  Ege  v.  Kille,  84  Pa.  333,  10 
M.  R.  212 ;  Liberty  Bell  Co.  v.  Moorhead  Co.,  58  Colo.  308,  145 
P.  686. 

The  cost  of  mining  should  be  deducted  from  the  value  of  the 
ore  in  all  cases  where  neither  fraud  nor  culpable  negligence 


MEASURE  OF  DAMAGES.  447 

constitutes  any  element  of  the  case. — Waters  v.  Stevenson,  13 
Nev.  157,  10  M.  R.  240,  29  Am.  Rep.  293;  Durant  Co.  v. 
Percy  Co.,  93  F.  166 ;  Hall  v.  Abraham,  44  Or.  477,  75  P.  882 ; 
Leivis  v.  Virginia  Co.,  69  S.  C.  364,  104  Am.  St.  Rep.  806,  48 
S.  E.  280.  When  coal  was  taken  under  bona  fide  claim  of  right 
a  reasonable  royalty  should  be  the  measure  of  damages. — 
Sandy  R.  Co.  v.  White  House  Co.,  125  Ky.  278,  101  S.  W.  319, 
102  S.  W.  320 ;  Kingston  v.  Lehigh  Val.  Co.,  (Pa.)  88  Atl.  768  • 
Stark  v.  Penn.  Co.,  (Pa.)  88  Atl.  770. 

Under  ordinary  circumstances  the  just  rule  of  compensation 
is  the  value  of  the  rock,  coal,  ore  or  oil  before  the  mining  or 
quarrying  began — the  value  in  place. — Dougherty  v.  Ches- 
nutt,  86  Tenn.  1,  5  S.  W.  444 ;  Coal  Creek  Co.  v.  Moses,  15  Lea 
(Tenn.)  300,  54  Am.  Rep.  415,  15  M.  R.  544;  Ege  v.  Kille, 
supra;  Dyke  v.  Nat.  Tr.  Co.,  22  App.  Div.  360,  49  N.  Y.  Supp. 
180.  And  where  the  ore  has  been  taken  by  defendant's  lessee, 
the  royalty  may  be  taken  as  the  net  profit. — Colo.  Cent.  Co.  v. 
Turck,  70  P.  294,  70  C.  C.  A.  128;  New  Dunderberg  Co.  v. 
Old,  97  F.  150,  38  C.  C.  A.  89;  Moragne  v.  Doe,  143  Ala.  459, 
11  Am.  St.  Rep.  52,  5  Ann.  Gas.  331,  39  So.  161 ;  Turner  v. 
Seep,  167  F.  646;  Pioneer  Co.  v.  Mitchell,  190  F.  937,  111 
C.  C.  A.  571. 

In  willful  trespass,  or  where  the  defendant  has  mingled  the 
ore  or  taken  any  steps  to  prevent  ultimate  proof  of  its  value, 
these  acts  are  to  be  taken  against  the  defendant. — Cheesman  v. 
Shreeve,  40  F.  788,  17  M.  R.  260 ;  even  so  far  as  to  throw  the 
burden  of  proving  the  value  upon  the  defendant. — Little 
Pittsburg  Co.  v.  Little  Chief  Co.,  11  Colo.  223,  7  Am.  St. 
Rep.  226, 17  P.  760, 15  M.  R.  655 ;  St.  Glair  v.  Cash  Co.,  9  Colo. 
App.  235,  47  P.  466,  18  M.  R.  523;  and  in  cases  of  fraud  a 
co-tenant  may  even  be  denied  plaintiff's  share  of  legitimate 
expenses.— Foster  v.  Weaver,  15  M.  R.  551,  118  Pa.  42,  4  Am. 
St.  Rep.  573,  12  Atl.  313.  A  wrongdoer  is  not  entitled  to  cost 
of  mining.— Benson  Co.  v.  Alta  Co.,  145  U.  S.  428,  12  Sup.  Ct. 
Rep.  877,  36  L.  Ed.  762,  17  M.  R.  488 ;  Sunny  side  Co.  v.  Reitz, 
14  Ind.  App.  478,  39  N.  E.  541,  43  N.  E.  46. 


448  MEASURE  OF  DAMAGES. 

Full  value  allowed  where  an  adjoiner  has  willfully  over- 
stepped his  ground. — Lightner  Co.  v.  Lane,  161  Cal.  689,  Ann. 
Cas.  1913E,  1093,  120  P.  771. 

In  trespass  the  presumption  is  that  the  taking  was  willful. — 
Liberty  Bell  Co.  v.  Smuggler  Co.,  203  F.  796,  122  C.  C.  A.  113 ; 
Central  Co.  v.  Penny,  173  F.  340,  97  C.  C.  A.  600.  But  where 
claim  of  right  is  shown  the  measure  of  damages  is  reduced  to 
the  value  of  the  mineral  or  timber  in  its  original  place  and  no 
more. — Central  Co.  v.  Penny,  supra. 

A  lessee  holding  over  under  claim  of  right  is  not  a  willful 
trespasser  and  is  to  be  allowed  the  cost  of  mining. — Montro- 
zona  Co.  v.  Tliatcher,  19  Colo.  App.  371,  75  P.  595. 
.  Negligence  to  ascertain  boundaries  does  not  make  neces- 
sarily a  willful  trespasser,  but  a  deliberate  intention  to  remain 
ignorant  of  boundaries  does  so. — Resurrection  Co.  v.  Fortune 
Co.,  129  F.  668,  64  C.  C.  A.  180. 

Plaintiff  may  prove  assays  of  ore  left  standing  and  com- 
putations of  what  was  taken  from  the  stopes — but  an  averag- 
ing estimate  of  how  much  each  miner  might  have  broken  is  too 
remote.— Golden  B.  Co.  v.  Buxton  Co.,  97  F.  413,  38  C.  C.  A. 
228. 

Value  of  ore  elsewhere  on  same  lode  is  admissible  in  proving 
damages  for  ore  taken. — Montana  M.  Co.  v.  St.  Louis  Co.,  183 
F.  51,  105  C.  C.  A.  343. 

In  Omaha  Co.  v.  Tabor,  16  M.  R.  184,  13  Colo.  41,  16  Am. 
St.  Rep.  185,  5  L.  R.  A.  236,  21  P.  925,  the  Court  adopted  the 
value  of  the  ore  when  it  became  a  chattel  by  severance  from 
the  realty.  That  is  the  rule  where  there  was  no  bona  fide  claim 
of  right,  and  under  the  circumstances  of  that  case  was  an 
extreme  ruling  and  against  the  almost  unbroken  weight  of 
authority. 

Central  Coal  Co.  v.  Penny,  173  F.  340,  97  C.  C.  A.  600,  is  a 
case  reviewing  the  items  of  mitigation  to  reduce  the  damages. 

Instructions  in  trespass  for  recovery  of  value  of  ores  taken, 
reviewed  and  held  to  be  correct. — Montana  M.  Co.  v.  St.  Louis 
M.  Co.,  147  F.  897,  78  C.  C.  A.  33. 


MEASURE  OF  DAMAGES.  449 

Where  tlue  Mine  Is   Under  Lease   and  Ore   Is  Taken  by 

trespass,  the  lessee  can  recover  in  trover  or  trespass. — Hart- 
ford Co.  v.  Cambria  Co.,  93  Mich.  90,  32  Am.  St.  Rep.  488,  17 
M.  R.  515,  53  N.  W.  4;  Attersoll  v.  Stevens,  10  M.  R.  67,  1 
Taunt.  183.  And  the  lessor  may  recover  to  the  extent  of  his 
royalty.— Stockbridge  Co.  v.  Cone  Works,  6  M.  R.  317,  102 
Mass.  80.  Where  the  lessor  treats  disputed  ground  as  his  own 
he  is  liable  to  the  owner  for  coal  taken  by  his  lessee. — Dundas 
v.  Muhlenberg,  14  M.  R.  437,  35  Pa.  351.  The  same  as  to  an  oil 
lease  to  the  full  value  of  the  leasehold  interest. — Duffield  v. 
Rosenziceig,  144  Pa.  520,  23  Atl.  4. 

Where  the  lessor  accepts  royalties  knowing  the  lessee  has 
overstepped  his  bounds,  both  may  be  held  in  the  same  action 
and  the  proceeds  of  ores  held  by  the  smelter  may  be  treated  as 
a  fund  to  secure  the  payment. — Zobel  v.  Fannie  Eawlings  Co., 
49  Colo.  134,  111  P.  843. 

Suit  by  Ousted  Lessee. 

A  lessee  wrongfully  ousted  by  his  lessor  is  entitled  to  recover 
the  profits  he  would  have  realized  on  adequately  proving  the 
same.— Smuggler  Union  Co.  v.  Kent,  47  Colo.  320,  112  P.  223. 
The  case  discusses  the  difficulty  of  proving  such  fact  and  re- 
versed the  lower  Court  for  allowing  inadmissible  evidence. 
See  also  Providence  Co.  v.  Nicholson,  178  F.  29,  101  C.  C.  A. 
157.  In  Hoosac  Co.  v.  Donat,  10  Colo.  529,  16  P.  157,  the 
opinion  on  this  point  is  abrupt  and  fails  to  compensate  the 
lessee. 

Where  the  lessor  later  mined  out  the  ground,  such  evidence 
was  under  the  defendant's  control,  and  in  such  case  every 
reasonable  intendment  will  be  made  to  support  a  verdict 
against  the  lessor. — Isabella  M.  Co.  v.  Glenn,  37  Colo.  165,  86 
P.  349. 

By  Licensee. 

A  licensee  (a  buyer  holding  under  executory  contract  of 
purchase)  has  no  right  of  action  for  coal  taken  by  trespass, 


450  MM  A  Si:  HE  OF   DAMAGKS. 

except  for  the  coal  actually  mined  by  the  licensee.—  Caledonian 
Co.  v.  Rocky  Cliff  C.  Co.,  16  N.  M.  517,  120  P.  716. 

The  sale  of  land  does  not  convey  the  right  of  action  for 
trespasses  committed  before  the  sale. — Id. 

In  a  California  case  a  plaintiff  in  possession  under  deed  in 
escrow  not  delivered  was  allowed  to  recover  against  an  ad- 
joiner  who  had  taken  ore  from  the  claim. — Light ner  Co.  v. 
Lane,  161  Gal.  689,  Ann.  Gas.  1913E,  1093,  120  P.  771. 

Special  If-juiy  to  the  Mine  Can  Not,  in  Trespass,  Ee  Proved 

as  damages,  unless  specially  declared  for. — Patdicn  v.  Keclcy, 
19  Nev.  404,  14  P.  347. 

Confusion. 

Mixture  of  ore  got  by  trespass  with  ore  rightfully  mined  does 
not  necessarily  bring  the  case  within  the  rule  as  to  confusion 
of  gccds.—Maloney  v.  King,  30  Mont.  158,  76  P.  4. 

Natural  gas  company  held  to  extreme  measure  of  damages 
where  it  had  fraudulently  mingled  lessors'  gas  without  keep- 
ing any  account  of  it. — Stone  v.  Marshall  Co.,  208  Pa.  85,  101 
Am.  St.  Rep.  904,  65  L.  R.  A.  218,  57  Atl.  183;  Great  S.  Co.  v. 
Logan  Co.,  155  F.  114,  83  C.  C.  A.  574. 

IVTesne  Profits — Accounting. 

At  common  law  a  plaintiff  out  of  possession  could  not  recover 
for  the  ore  taken  until  he  had  recovered  possession  by  eject- 
ment.— Ilugunin  v.  McCunniff,  14  M.  R.  463,  2  Colo.  367. 

This  is  changed  by  statute  in  Colorado.— R.  S.  Sec.  4219. 
The  plaintiff  may  recover  the  land  and  damages  in  a  single 
action  or  by  separate  suits. — Code,  Sec.  291.  The  case  of  Ghost 
v.  Shuvian,  4  Colo.  App.  88,  34  P.  733,  which  holds  that  they 
must  be  recovered  in  the  original  action,  entirely  overlooks 
this  section. 

Where  there  v;ere  t'.vo  r.t1.;;  inin^  claims  with  conflicting  apex 
rights,  iu  u,v,...r  ' .  .j  Lot  c.  :i  t!:e:u  for  ores  taken,  cost  of  min- 


MEASURE  OF  DAMAGES.  451 

ing  is  to  be  deducted,  and  the  rise  in  value  of  the  price  of 
ore  is  not  to  be  added  to  the  recovery. — Clark  Montana  Co.  v. 
Butte  Co.,  233  F.  548. 

Venue  in  Trespass. 

Whether  trespass  on  real  estate  is  a  local  or  a  transitory 
action — whether  it  can  be  brought  in  one  State  for  injuries 
done  in  another — depends  on  the  legislation  or  decisions  of  the 
particular  State.  The  question  is  fully  discussed  in  Peyton  v. 
Desmond,  129  F.  1,  63  C.  C.  A.  651. 

Miscellaneous  Cases. 

For  the  measure  of  damages  on  refusal  to  accept  deed,  see 
Gilpin  M.  Co.  v.  Drake,  8  Colo.  586,  9  P.  787.  On  breach  of 
contract  to  lease.— Chambers  v.  Brown,  69  la.  213,  28  N.  W. 
561.  In  cases  of  negligence. — Moody  v.  McDonald,  4  Cal.  297, 
2  M.  R.  185,  187.  On  tunnel  contract. — Monroe  v.  Northern  P. 
Co.,  5  Or.  509,  2  M.  R.  652.  Against  lessor  for  mining  the 
ground  leased. — Chamberlain  v.  Collinson,  9  M.  R.  37,  45  Iowa 
429.  Against  lessee  for  breach  of  covenants  to  mine. — Cleo- 
patra Co.  v.  Dickinson,  28  Wash.  211,  68  P.  456 ;  Colorado  Fuel 
Co.  v.  Pry  or,  25  Colo.  540,  57  P.  51,  19  M.  R.  544;  Macon  v. 
Trowbridge,  38  Colo.  330,  87  P.  1147.  Against  smelter  fumes. 
— Park  v.  Northport  8m.  Co.,  47  Wash.  597,  92  P.  442. 

On  a  contract  to  make  a  mine  a  "dividend  producer"  with 
stock  deposited  as  forfeit,  plaintiff  was  not  allowed  to  recover 
damages  in  addition  to  the  forfeit. — Catterlin  v.  Voney,  177 
F.  527. 

On  contract  to  furnish  funds  to  drill  for  coal  and  to  form 
a  company  and  issue  stock  in  payment  for  land. — Eisleben  v. 
Brooks,  179  F.  86,  102  C.  C.  A.  380. 

Measure  of  damages  on  fraudulent  sale  of  mine  or  stock  is 
the  difference  between  the  value  received  and  the  value  parted 
with.— Smith  v.  Bolles,  132  U.  S.  125,  10  Sup.  Ct.  Rep.  39,  33 
L.  Ed.  279,  16  M.  R.  159;  Warner  v.  Benjamin,  89  Wis.  290, 


452  NEGLIGENCE.     ACCIDENTS. 

62  N.  W.  179;  Stratton's  Ind.  v.  Dines,  135  F.  449,  68  C.  C.  A. 
161. 

Conversion  of  stock  of  no  fixed  market  value. — Moynahan  v. 
Prentiss,  10  Colo.  App.  295,  51  P.  94. 

On  sale  of  coal. — Osgood  v.  Bander,  75  la.  550,  1  L.  R.  A. 
655,  39  N.  W.  887.  For  stoppage  of  work  on  contract  to  sink, 
before  shaft  complete. — Mooney  v.  York  Co.,  82  Mich.  263,  46 
N.  W.  376. 

Heavy  verdict  sustained  for  breach  of  contract  to  drive 
drainage  tunnel. — Occidental  M.  Co.  v.  Comstock  T.  Co.,  125 
F.  244. 

The  measure  of  damages  for  breach  of  contract  by  lessor  to 
drain  the  mine  is  the  cost  of  restoring  it  to  its  condition  before 
injury  accrued,  but  this  can  not  exceed  the  value  of  the  un- 
expired  portion  of  plaintiff's  term.— Carter  v.  Cairo  Co.,  240 
111.  152,  88  N.  E.  493. 


NEGLIGENCE.     ACCIDENTS. 


The  same  rule  governs  the  liabilities  of  owners,  lessees  and 
contractors  in  case  of  accident  to  employees,  as  controls  in 
other  cases  where  the  relation  of  master  and  servant  exists,  and 
negligence  is  the  foundation  of  the  action. — Quincy  Co.  v. 
Hood,  12  M.  R.  148,  77  111.  68 ;  Strahlendorf  v.  Rosenthal,  10 
M.  R.  676,  30  Wis.  674;  Central  C.  Co.  v.  Williams,  173  F.  337, 
97  C.  C.  A.  597. 

Safe  place  to  work  defined.— Dolese  Co.  v.  Kahl,  203  F.  627, 
122  H.  C.  A.  23.  Mining  is  a  dangerous  business  and  subject 
to  State  regulation  under  its  police  power. — Barrett  v.  Indi- 
ana, 229  U.  S.  26,  33  Sup.  Ct.  Rep.  692,  57  L.  Ed.  1050.  Com- 
pelling owner  to  leave  barriers  is  no  unreasonable  exercise  of 
such  power. — Plymouth  Co.  v.  Com.,  232  U.  S.  531,  34  Sup.  Ct. 
Rep.  359,  58  L.  Ed.  713.  The  servant  assumes  only  risks 
which  are  obvious  after  the  master  has  performed  his  duty. — 


NEGLIGENCE.     ACCIDENTS.  453 

Blair  v.  Spokane,  66  Wash.  399,  119  P.  839.  The  miner  does 
not  forfeit  his  right  to  protection  during  intervals  of  labor. — 
Mammoth  M.  Co.  v.  Thomas,  201  F.  297,  119  C.  C.  A.  535.  The 
mine  operator  is  chargeable  with  implied  notice  of  facts  upon 
which  danger  may  be  predicated,  without  proof  of  actual 
notice.—  Kinsel  v.  North  Butte  Co.,  44  Mont.  445,  120  P.  797. 

The  Degree  of  Care  Required  of  the  Master  Is  Fully  Stated 

in  Southwest  Co.  v.  Smith,  85  Va.  306,  17  Am.  St.  Rep.  59,  7 
S.  E.  365.  The  miner  has  no  recovery  for  the  ordinary  and 
unavoidable  risks  of  the  business. — Cherokee  Co.  v.  Britton,  3 
Kan.  App.  292,  45  P.  101. 

Instances  of  Responsibility. 

The  employer  is  liable  for  failure  to  timber  dangerous 
ground.— Triliay  v.  Brooklyn  Co.,  15  M.  R.  535,  4  Utah  468, 
11  P.  612;  Sampson  Co.  v.  Schaad,  15  Colo.  197,  25  P.  89,  11 
M.  R.  362;  Mountain  Cop.  Co.  v.  Van  Buren,  133  F.  1,  66 
C.  C.  A.  151.  Or  for  failure  to  observe  his  own  code  signals. — 
Silver  Cord  Co.  v.  McDonald,  14  Colo.  191,  23  P.  346,  16  M.  R. 
171.  Or  defective  rope  or  hoisting  gear. — New  York  Co.  v. 
Rogers,  11  Colo.  6,  7  Am.  St.  Rep.  6,  16  P.  719,  17  M.  R.  123 ; 
Myers  v.  Hudson  Co.,  150  Mass. .125,  15  Am.  St.  Rep.  176,  22 
N.  E.  631 ;  Donnelly  v.  Booth  Co.,  90  Me.  110,  37  Atl.  874.  Or 
for  scales,  the  fall  of  which  should  have  been  foreseen. — Buck- 
ley v.  Port  Henry  Co.,  2  N.  Y.  Supp.  133,  49  Hun  609 ;  Union 
P.  Ry.  v.  Jarvi,  53  F.  65,  3  C.  C.  A.  433 ;  Wilson  v.  Alpine  Co., 
118  Ky.  463,  81  S.  W.  278;  La  Follette  Co.  v.  Minton,  117 
Tenn.  415,  11  L.  R.  A.  (N.  S.)  478,  101  S.  W.  178.  For  a  pre- 
ventable cave.— James  v.  Emmett  Co.,  55  Mich.  335,  21  N.  W. 
361 ;  Pantzar  v.  Tilly  Co.,  99  N.  Y.  368,  2  N.  E.  24.  For  rotten 
or  broken  ladder.— Reese  v.  Morgan  Co.,  17  Utah  489,  54  P. 
759 ;  Gold  Hunter  Co.  v.  Johnson,  233  F.  849.  For  sending 
men  into  a  blind  upraise  known  to  be  filled  with  bad  air. — 
Portland  Co.  v.  Flaherty,  111  F.  312,  49  C.  C.  A.  361,  21  M.  R. 
555. 


454  NEGLIGENCE.     ACCIDENTS. 

The  mine  owner  must  look  to  the  proper  support  of  his  gang- 
ways and  to  the  timbering  and  to  the  machinery  above. — 
Quincy  Co.  v.  Hood,  supra;  Strahlendorf  v.  Rosentlwl,  supra; 
Ardesco  Co.  v.  Gilson,  63  Pa.  146, 10  M.  R.  669 ;  Soyer  v.  Great 
Falls  Co.,  15  Mont.  1,  37  P.  838.  Failure  to  examine  gangways. 
— Ashland  Co.  v.  Wallace,  101  Ky.  626,  42  S.  W.  744,  43  S.  W. 
207. 

The  master's  negligence  is  not  one  of  the  risks  which  the 
miner  assumes. — Southern  C.  Co.  v.  Swinney,  149  Ala.  405,  42 
So.  808. 

That  an  engineer  disobeyed  orders  in  doing  what  brought 
about  the  accident  is  no  defense. — Lewis  v.  Mammoth  M.  Co., 
33  Utah  273,  15  L.  R.  A.  (N.  S.)  439,  93  P.  732. 

The  miner  has  a  right  to  assume  that  the  roof  is  safe. — 
Vanesse  v.  Catsburg  Co.,  159  Pa.  403,  28  Atl.  200.  The  same  as 
to  the  machinery. — Myers  v.  Hudson  Co.,  150  Mass.  125,  15 
Am.  St.  Eep.  176,  22  N.  E.  631.  The  same  as  to  mine  passage 
ways.— Jackson  v.  Tak  M.  Co.,  51  Colo.  551,  119  P.  1058. 

The  master  is  responsible  when  the  accident  can  be  traced 
directly  to  his  own  fault  or  the  fault  of  his  partner. — Mellors 
v.  Shaw,  9  M.  R.  678,  1  B.  &  S.  437.  And  generally  where 
traceable  to  the  fault  of  the  superintendent  or  foreman. 

He  is  liable  for  overspeeding  the  cage. — Jos.  Taylor  Co.  v. 
Dawes,  220  111.  145,  77  N.  E.  131.  And  for  failure  to  lag 
where  lagging  was  customary  and  necessary. — Friel  v.  Eim- 
lerly-Montana  Co.,  34  Mont.  54,  85  P.  734. 

It  is  the  duty  of  the  employer  to  inform  an  inexperienced 
miner  of  dangers  known  or  which  ought  to  be  known. — Low 
Moor  Iron  Co.  v.  La  Bianca,  106  Va.  83,  9  Ann.  Gas.  1177, 
55  S.  E.  532;  Pocalwntas  Co.  v.  Williams,  105  Va.  708,  54 
S.  E.  868. 

Degree  of  care  required  of  owner  of  pipe  line  to  prevent  the 
oil  catching  fire.— Jennings  v.  Davis,  187  F.  703,  109  C.  C.  A. 
451. 


NEGLIGENCE.     ACCIDENTS.  455 

Blasting — Explosions — Gas. 

It  is  the  absolute  duty  of  the  master  to  give  warning  of  a 
Wast.—Hjelm  v.  Western  Gr.  Co.,  94  Minn.  169,  102  N.  W. 
334;  Bellevue  Co.  v.  Mooney,  61  N.  J.  L.  253,  39  L.  R.  A.  834, 
39  Atl.  764,  19  M.  R.  264. 

The  owner  is  liable  for  accidents  resulting  from  experiment- 
ing with  new  and  untried  fuse  or  explosives. — Smith  v.  Oxford 
Co.,  42  N.  J.  L.  467,  36  Am.  Rep.  535,  2  M.  R.  208;  Cham- 
bers v.  Chester,  172  Mo.  461,  72  S.  W.  904;  Hedlun  v.  Holy 
Terror  Co.,  16  S.  D.  261,  92  N.  W.  31.  Or  for  setting  new 
employees  at  work  fitting  caps. — Rillston  v.  Mather,  44  F.  743 ; 
Mather  v.  Rillston,  156  U.  S.  391,  15  Sup.  Ct.  Rep.  464,  39 
L.  Ed.  464,  18  M.  R.  165.  Or  storing  magazines  too  close  to 
works.— Bean  v.  Pioneer  Co.,  66  Cal.  451,  56  Am.  Rep.  106, 
6  P.  86 ;  Asbestos  Co.  v.  Durand,  20  M.  R.  452,  30  Canada  285. 
He  must  use  all  appliances  readily  obtainable  known  to  science 
to  prevent  gas  explosions. — Western  Co.  v.  Berberich,  94  F. 
329,  36  C.  C.  A.  364. 

The  duty  of  the  master  to  warn  against  a  blast  is  one  that 
can  not  be  delegated  to  a  fellow  servant. — Hendrickson  v. 
U.  S.  Gypsum  Co.,  133  Iowa  89,  12  Ann.  Gas.  246,  9  L.  R.  A. 
(N.  S.)  555, 110  N.  W.  322. 

Inexperienced  miners  have  the  right  to  be  instructed  as  to 
the  dangerous  character  of  dynamite. — Pinney  v.  King,  98 
Minn.  160,  107  N.  W.  1127. 

Furnishing  a  steel  bar  to  tamp  powder  is  gross  negligence. — 
Pitts  v.  Wells,  31  Ky.  L.  208,  101  S.  W.  1192. 

Action  for  gas  explosion.  Plaintiff  is  not  bound  to  show  how 
the  gas  was  lighted. — Luengene  v.  Consumers  Co.,  86  Kan. 
866,  122  P.  1032. 

In  blasting  near  houses  the  blast  should  be  smothered. — 
Kimberly  v.  Rowland,  143  N.  C.  398,  7  L.  R.  A.  (N.  S.)  545, 
55  S.  E.  778.  And  in  Louden  v.  Cincinnati  it  was  held  that  the 
city  was  liable  whether  it  used  due  care  or  not. — 90  Ohio  St. 


456  NEGLIGENCE.     ACCIDENTS, 

144,  Ann.  Cas.  19160,  1171,  L.  R.  A.  1915E,  356,  106  N.  E. 
970. 


Misfire. 

Consideration  of  what  is  reasonable  time  to  wait  for  blast. — 
Eureka  Co.  v.  Bass,  81  Ala.  200,  6  Am.  Rep.  152,  8  So.  216. 
Full  case  on.— Anderson  v.  Daly  Co.,  16  Utah  28,  50  P.  815. 

Examination  should  be  made  and  new  shift  notified  of 
missed  shot. — Lane  Co.  v.  Bauserman,  103  Va.  146,  106  Am. 
St.  Rep.  872,  48  S.  E.  857 ;  Harris  v.  Balfour  Co.,  137  N.  C. 
204,  49  S.  E.  95;  Allen  v.  Bell,  32  Mont.  69,  79  P.  582. 

Defendant  held  for  allowing  green  hand  to  pick  missed 
shot.— Peters  v.  George,  154  F.  635,  83  C.  C.  A.  408. 

An  employer  is  liable  where,  neglecting  his  unvarying  cus- 
tom, he  fails  to  investigate  for  a  misfire. — Bjorklund  v.  Gray, 
106  Minn.  42,  118  N.  W.  59. 

Whether  it  is  negligence  to  fire  several  shots  so  as  to  go  off 
with  one  report  and  so  render  it  impossible  to  tell  whether 
one  or  more  were  missed  shots,  is  a  question  of  fact  for  the 
jury.— Jobe  v.  Spokane  Co.,  73  Wash.  1,  48  L.  R.  A.  (N.  S.) 
931,  131  P.  235. 

Safeguarding  Shafts. 

Construction  of  the  Colorado  Act  requiring  abandoned 
shafts  to  be  safeguarded. — Richardson  v.  El  Paso  M.  Co.,  51 
Colo.  440,  449,  118  P.  982. 

The  miner  assumes  only  known  dangers  or  those  which  he 
should  have  ascertained.  The  case  was:  Falling  into  an  un- 
guarded ore  shoot. — Gregoric  v.  Percy-La  Salle  Co.,  52  Colo. 
495,  Ann.  Cas.  1913E,  1030, 122  P.  785. 

The  Lessor  Is  Not  Liable  for  the  Lessee's  Negligence. 

—Smith  v.  Belshaw,  89  Cal.  427,  26  P.  834.  Otherwise,  when 
he  lets  machinery  already  out  of  condition. — 1  Thomp.  Neg. 
317. 


NEGLIGENCE.     ACCIDENTS.  457 

Under  Contractor. 

The  mine  owner  is  not  in  general  liable  for  accidents  occur- 
ring under  a  contractor. — Lendberg  v.  Brotherton  Co.,  75 
Mich.  84,  42  N.  W.  675;  Welsh  v.  Lehigh  Co.  (Pa.),  5  Atl.  48. 
But  is  liable  where  contractor  is  known  to  be  incompetent. — 
Huntt  v.  M'Namee,  141  F.  293,  72  C.  C.  A.  441.  Or  where  the 
owner  reserves  control  of  the  work. — Tennessee  Co.  v.  Burgess, 
158  Ala.  519,  47  So.  1029. 

Contributory  Negligence — Co-Employee. 

The  mine  owner,  as  a  general  rule,  is  not  liable  when  the 
accident  was  in  whole  or  in  part  attributable  to  the  negligence 
of  the  party  injured  or  to  the  carelessness  of  a  fellow  workman 
not  occupying  a  directing  or  superior  position  to  the  party 
injured.— Kevern  v.  Prov.  Co.,  70  Cal.  392,  11  P.  740;  Ardesco 
Co.  v.  Gilson,  63  Pa.  146,  10  M.  R.  669 ;  Berea  Co.  v.  Kraft, 
31  Ohio  St.  287,  27  Am.  Rep.  510,  10  M.  R.  16;  Trihay  v. 
Brooklyn  Co.,  15  M.  R.  535,  4  Utah  468,  11  P.  612;  Colorado 
Midland  Ey.  Co.  v.  O'Brien,  16  Colo.  220,  27  P.  701.  It  is 
not  necessarily  contributory  negligence  to  use  fire  for  com- 
fort when  dynamite  is  being  thawed. — Bertha  Co.  v.  Martin,  93 
Va.  791,  70  L.  R.  A.  999,  22  S.  E.  869. 

Knowledge  of  danger  is  not  always  contributory  negligence. 
—Blaire  v.  Spokane,  66  Wash.  399,  119  P.  839. 

Contributory  negligence  is  no  defense  to  accident  caused  by 
willful  neglect  of  statutory  duty. — Chicago  Co.  v.  Fidelity  Co., 
130  F.  957 ;  Fulton  v.  Wilmington  Co.,  133  F.  193,  68  L.  R.  A. 
168,  66  C.  C.  A.  247. 

Miners  working  under  different  superintendents  are  not 
fellow  servants.— Uren  v.  Golden  T.  Co.,  24  Wash.  261,  64  P. 
174,  21  M.  R.  243. 

Negligence  of  fellow  servant  is  no  defense  if  the  master 
knew  of  the  danger. — Hancock  v.  Keene,  5  Ind.  App.  408,  32 
N.  E.  329.  That  the  accident  was  chargeable  to  a  co-employee 
is  no  longer  a  defense  in  Colorado.— R.  S.  Sees.  2064,  2065. 


458  NEGLIGENCE.     ACCIDENTS. 

Assumption  of  risk  and  contributory  negligence  must  be 
specially  pleaded. — Foley  v.  Pioneer  Co.,  144  Ala.  178,  40  So. 
274. 

An  employee  does  not  assume  the  risk  arising  from  the  em- 
ployment of  an  incompetent  fellow  servant. — Majestic  Co.  v. 
McCoy,  132  Ky.  533, 116  S.  W.  738. 

Remaining  in  Employ  After  Danger  Known  Is  Held  in 

instances  to  be  a  defense. — Lord  v.  Pueblo  Co.,  12  Colo.  390, 
21  P.  148;  Davis  v.  Graham,  2  Colo.  App.  210,  29  P.  1007.  It 
is  technically  classed  as  contributory  negligence,  though  this 
is  a  mere  abuse  of  terms ;  it  is  only  acquiescence  perhaps  from 
moral  necessity,  in  the  negligence  of  the  master,  perhaps  crim- 
inal in  degree.  It  is  hard  for  the  reasoning  powers  of  man 
to  conclude  that  this  does  not  amount  to  a  premium  on  .negli- 
gence. 

If  the  master  promise  to  repair,  the  workman  may  rely  on 
the  promise  and  remain. — Highland  Boy  Co.  v.  Pouch,  124  F. 
148,  154,  61  C.  C.  A.  40 ;  Gold  Hunter  Co.  v.  Johnson,  233  F. 
849. 

A  miner  may  know  of  the  facts  which  bring  about  danger 
without  necessarily  knowing  that  danger  exists. — Bird  v.  Utica 
M.  Co.,  2  Cal.  App.  674,  84  P.  256  j  Mascot  Co.  v.  Garrett,  156 
Ala.  290,  47  So.  149. 

First  Aid  to  Injured. 

It  is  the  duty  of  a  mining  company  to  render  first  aid  to 
those  injured  in  its  employ. — Cushman  v.  Cloverland  C.  Co., 
170  Ind.  402,  127  Am.  St.  Rep.  391, 16  L.  E.  A.  (N.  S.)  1078, 
84  N.  E.  759. 


REPLEVIN— INJUNCTION.  45U 

REPLEVIN. 


Ore  Taken  Under  Claim  of  Title. 

Where  a  party  is  in  possession  of  a  -mine  under  a  "bona  fide 
claim  of  title,  the  party  out  of  possession  can  not  maintain 
replevin,  or  an  action  under  the  code  in  the  nature  of  replevin, 
for  the  ore  taken  from  the  same,  because  the  trial  of  the  right 
of  property  in  the  ore  in  such  case  would  necessarily  involve 
the  trial  of  the  title  to  real  estate.  The  cases  sustaining  this 
proposition  are  cited  ante  p.  432. 

In  a  case  of  replevin  for  ore  in  Montana  which  brought  up 
the  question  of  apex  right,  the  Court  took  the  novel  and  inde- 
fensible position  that  it  involved  no  dispute  as  to  title  and 
was  only  a  matter  of  boundaries. — Driscoll  v.  Dunwoody,  1 
Mont.  394,  16  P.  726. 

Defendant  can  not  re-replevin  ore. — Morris  v.  DeWitt,  12 
M.  R.  680,  5  Wend.  (N.  Y.)  71. 


INJUNCTION. 

" 

At  some  stage  of  its  progress  a  contest  over  a  working  mine 
is  almost  sure  to  suggest  this  sort  of  relief.  It  is  true  that  the 
prayer  for  an  injunction  is  always  to  a  certain  extent  ad- 
dressed to  the  discretion  of  the  Court,  but  the  exercise  of  this 
discretion  does  not  imply  the  total  absence  of  principles 
applicable  to  the  exercise  of  discretion. 

The   Ground  of  the  Application  for  Injunctive  Relief  Is 

that  the  property  may  be  preserved  pending  litigation  for  the 
ultimate  use  of  the  rightful  owner  and  may  not  in  the  mean- 
while be  destroyed  by  a  trespasser.  But  the  pendency  of  litiga- 
tion is  not  of  itself  sufficient ;  the  complainant  must  go  farther 
and  show  that  his  case  is  based  upon  substantial  facts,  and 
that  there  is  a  probability  of  a  decision  in  his  favor  when  the 


460  INJUNCTION. 

cause  is  tried  on  its  merits.  As  he  asks  relief  in  advance  of 
the  trial,  it  is  only  just  that  he  make  it  appear  that  the  trial 
when  had  will  show  that  he  was  in  fact  entitled  to  this  pro- 
tection ;  and  especially  so  when  a  decree  of  this  sort,  wrong- 
fully issued,  may  be  and  often  is  as  great  an  injury  to  the 
defendant  as  the  conversion  of  some  of  the  ore  is  to  a  rightful 
complainant. — Capner  v.  Flemington  Co.,  1  M.  R.  263,  3  N.  J. 
Eq.  467 ;  Clavering  v.  Clavering,  14  M.  E.  358,  2  P.  Wms.  388 ; 
Irwin  v.  Davidson,  7  M.  R,  237,  3  Ir.  Eq.  311. 

Parties. 

One  who  has  a  contract  to  sink  an  oil  well  entered  into  be- 
fore the  suit,  is  not  bound  by  an  injunction  against  his  em- 
ployer.— Dunham  v.  Seilerling,  12  Ind.  App.  210,  39  N.  E. 
1044.  Lessees  should  be  made  parties. — High  Inj.,  Sec.  690; 
Doctor  Co.  v.  Marsh,  216  F.  261. 

A  lessee  or  licensee  may  be  entitled  to  the  protection  of  the 
writ  even  against  the  owner.— Lytle  v.  James,  98  Mo.  App.  337, 
73  S.  W.  287 ;  Jack  Harvard  Co.  v.  Continental  Co.,  106  Mo. 
App.  66,  80  S.  W.  12. 

The  Right  of  Lessees  to  Protection  Against  the  Owner  and 

those  working  adjoining  works  is  construed  in  Peterson  v.  Bul- 
lion Co.,  32  Utah  20,  14  Ann.  Cas.  1122,  91  P.  1095,  41  Utah 
364,  126  P.  310. 

Laches. 

To  entitle  him  to  injunctive  relief  the  complainant  must 
not  have  been  guilty  of  unreasonable  delay  nor  have  allowed 
the  defendant  to  proceed  without  objection  to  expend  money  in 
good  faith  upon  the  property. — Klein  v.  Davis,  11  Mont.  155, 
27  P.  511 ;  Parrott  v.  Palmer,  3  M.  &  K.  632 ;  Real  del  Monte 
Co.  v.  Pond  Co.,  1  M.  R.  452,  23  Cal.  82 ;  Emma  Mine  case,  2 
Leg.  Gaz.  81,  7  M.  R.  493 ;  Field  v.  Beaumont,  1  Swanst.  204, 
7  M.  R.  257j  Mammoth  Co.'s  Appeal,  54  Pa.  183,  7  M.  R.  460; 


INJUNCTION.  461 

Patterson  v.  Hewitt,  11  N.  M.  1,  55  L.  R.  A.  658,  66  P.  552; 
Consumers'  Co.  v.  American  Co.,  162  Ind.  393,  68  N.  E.  1020. 

The  Solvency  or  Insolvency  of  the  Defendant,  as  Well  as 

many  other  circumstances  applicable  to  particular  cases,  may 
be  taken  into  account,  but  is  not  a  controlling  consideration 
when  the  case  is  otherwise  clear. — Lockwood  v.  Lunsford,  1 
M.  R.  532,  56  Mo.  68;  Hamilton  v.  Ely,  4  Gill.  (Md.)  34; 
Sierra  Co.  v.  Sears,  1  M.  R.  549, 10  Nev.  346 ;  Moore  v.  Ferrell, 
1  Ga.  7,  7  M.  R.  281 ;  Irwin  v.  Davidson,  3  Ir.  Eq.  (38  N.  C.) 
311 ;  Parker  v.  Furlong,  37  Or.  248,  62  P.  490. 

Discretion. 

The  granting  of  the  writ  is  so  largely  in  the  discretion  of 
the  lower  Court  that  only  in  an  extreme  case  will  the  Appellate 
Court  interfere  with  the  order  allowing  or  refusing  it. — Par- 
rot S.  Co.  v.  Heinze,  24  Mont.  485,  62  P.  818,  21  M.  R.  98; 
Cardelli  v.  Comstock  Co.,  21  M.  R.  699,  26  Nev.  284,  66  P. 
950;  Vogel  v.  Warsing,  146  F.  949,  77  C.  C.  A.  199;  Bush  v. 
Pioneer  Co.,  154  F.  480,  83  C.  C.  A.  320. 

In  doubtful  cases  the  courts  favor  the  writ. — Stewart  Co.  v. 
Ontario  Co.,  23  Ida.  280, 129  P.  932. 

The  Court  has  power  to  withhold  the  writ  when  the  plain- 
tiff refuses  to  do  equity  or  where  it  would  place  one  party  in 
the  power  of  the  other.— Strobel  v.  Kerr  Salt  Co.,  164  N.  Y. 
303,  79  Am.  St.  Rep.  643,  51  L.  R.  A.  687,  58  N.  E.  142,  21 
M.  R.  39. 

Title  in  Issue. 

In  cases  where  a  determination  of  the  legal  title  is  necessary 
to  finally  decide  the  rights  of  the  parties,  the  complaint  should 
be  framed  to  procure  an  issue  of  that  sort ;  or  a  previous  suit 
must  be  pending  which  will  result  in  determining  the  title ;  or 
a  separate  action  must  be  brought  for  such  purpose.  If  no 
suit  be  pending  to  try  title,  the  Court  may  order  such  suit  to 


462  INJUNCTION. 

be  brought  as  a  condition  precedent  to  the  granting  of  the 
writ.— V.  8.  v.  Parrott,  Fed.  Cas.  No.  15,998,  McAll.  271,  7 
M.  R.  335 ;  Grey  v.  Northumberland,  13  Ves.  235,  7  M.  R.  250 ; 
Old  Telegraph  Co.  v.  Central  Co.,  1  Utah  331,  7  M.  R.  555. 
And  such  has  been  the  common  practice  in  the  Federal  Court. 
—Stevens  v.  Williams,  5  M.  R.  449. 

A  plaintiff  in  possession  is  not  required  to  bring  his  action 
at  law.— Allen  v.  Dunlap,  24  Or.  229,  33  P.  675.  The  writ  may 
issue  to  preserve  the  property  when  the  issue  is  between  con- 
testants in  an  equity  case. — St.  Louis  Co.  v.  Montana  Co.,  58 
F.  129,  17  M.  R.  658.  The  writ  will  not  go  when  the  plaintiff's 
title  is  not  clear  and  the  legal  remedy  is  adequate. — Smith  v. 
Jameson,  91  Mo.  13,  3  S.  W.  212. 

Where  there  is  one  case  pending  which  brings  up  all  ques- 
tions of  apex  rights  between  the  parties,  the  filing  of  future 
actions  raising  such  issues  will  be  enjoined. — Maloney  v.  King, 
30  Mont.  414,  76  P.  939. 

Preservation  of  the  Property. 

The  gist  of  the  case  and  the  foundation  of  equity  jurisdiction 
is  to  save  the  property  from  destruction  pending  the  litiga- 
tion.— Thomas  v.' Oakley,  1  M.  R.  254,  18  Ves.  184;  Hess  v. 
Winder,  34  Gal.  270 ;  West  Point  Co.  v.  Reymert,  45  N.  Y.  703, 
7  M.  R.  528 ;  Hoy  v.  Altoona  Co.,  136  F.  483 ;  McGuire  v.  Boyd 
C.Co.,  236  111.  69,  86  N.  E.  174. 

The  United  States  may  protect  its  oil  lands  by  injunction. — 
El  Dora  Co.  v.  U.  S.,  229  F.  946.  ' 

Case  Sufficient  to  Warrant  Injunction. 

To  reduce  the  matter  to  terms  it  may  be  stated  as  a  proposi- 
tion, supported  everywhere  by  authority,  that  a  temporary 
injunction,  pending  suit  to  try  title,  will  issue  as  of  right  to 
restrain  the  working  of  a  mine,  upon  a  case  which  shows,  after 
hearing  on  bill,  answer  and  testimony : 

1.  That  the  complainant  has  the  legal  title  or  the  elder  and  better 
possessory  title;  or  at  least  such  showing  of  title  as  would,  if  proved  as 


INJUNCTION.  463 

stated  in  the  bill,  support  the  verdict  of  a  jury  in  an  action  of  eject- 
ment; and  where  the  defense  suggested  in  the  answer  does  not  show  a 
recovery  by  plaintiff  impossible  as  a  proposition  of  law;  and  the  affidav- 
its or  depositions  being  considered  the  weight  of  evidence  is  with  com- 
plainant upon  the  question  of  fact;  and  that  the  defendant  is  in  posses- 
sion taking  out  ore  (which  of  itself  is  a  destruction  of  the  estate)  in 
such  considerable  quantity  as  to  threaten  irreparable  injury. 

St.  Louis  Co.  v.  Montana  Co.,  58  F.  129,  17  M.  R..  658 :  Par- 
rot  Co.  v.  Heinze,  24  Mont.  485,  62  P.  818,  21  M.  B.  98 ;  More  v. 
Massini,  32  Cal.  590,  7  M.  R.  455;  Magnet  Co.  v.  Page  Co.,  9 
Nev.  346,  7  M.  R.  540;  Lockwood  v.  Lunsford,  56  Mo.  68,  7 
M.  R.  532 ;  Bettmann  v.  Harness,  42  W.  Va.  433,  36  L.  R.  A. 
566,  26  S.  E.  271,  18  M.  R.  500;  Erliardt  v.  Boaro,  15  M.  R. 
447,  113  U.  S.  537,  5  Sup.  Ct.  Rep.  565,  28  L.  Ed.  1116 ;  Ana- 
conda Co.  v.  Butte  Co.,  17  Mont.  519,  43  P.  924. 

2.  That  the  bill  was  brought  without  needless  delay,  and  that  the 
defendant  has  not  been  allowed  or  encouraged  to  expend  large  sums  of 
money  upon  the  property,  which  it  was  in  the  power  of  complainant  to 
prevent. 

Ernest  v.  Vivian,  33  L.  J.  Ch.  513,  8  M.  R.  205;  Klein  v. 
Davis,  11  Mont.  155,  27  P.  511,  and  other  cases  above  cited. 

And  as  matters  more  particularly  addressed  to  the  discre- 
tion of  the  Court  are  the  insolvency  of  defendant,  threats  of 
violence  and  danger  of  personal  collisions,  the  fact  of  reck- 
less mining,  without  regard  to  the  permanent  preservation  of 
the  mine,  etc. 

The  above  propositions  are  made  upon  the  supposition  of  an 
application  for  injunction  after  notice,  appearance  and  answer. 

Insufficient  Case. 

An  injunction  should  not  issue  where  defendant  will  suffer 
greater  injury  by  the  writ  than  the  plaintiff  by  the  wrong. — 
Lloyd  v.  Catlin  Co.  210  111.  460,  71  N.  E.  335;  Berkey  v.  Ber- 
u-ind-White  Co.,  220  Pa.  65,  16  L.  R.  A.  (N.  S.)  851,  69  Atl. 
329. 

Where  defendants  are  solvent  and  injury  slight  or  capable 
of  redress  at  law,  injunction  should  be  denied. — King  v.  Mul- 


464  INJUNCTION. 

tins,  27  Mont.  364,  71  P.  155 ;  Harley  v.  Montana  Co.,  27  Mont. 
388,  71  P.  407,  22  M.  R.  550 ;  Hicks  v.  American  Co.,  207  Pa. 
570,  65  L.  E.  A.  209,  57  Atl.  55. 

It  is  an  abuse  of  discretion  to  enjoin  the  working  of  a  vein 
on  the  mere  chance  that  it  may  apex  outside  of  defendant's 
ground.— Montana  Co.  v.  Boston  Co.,  22  Mont.  159,  56  P.  120, 
20  M.  B.  1. 

The  courts  will  not  forbid  working  for  exploration  purposes. 
— 8t.  Louis  Co.  v.  Montana  Co.,  58  F.  129,  17  M.  R.  658.  And 
it  is  assumed  as  matter  of  course  that  courts  will  not  enjoin  a 
mere  prospect,  but  such  case  rarely  reaches  the  Appellate 
Court  so  as  to  be  reported  and  cited. 

Courts  will  not  enjoin  in  cases  charged  with  doubt  or  where, 
on  the  plaintiff's  showing,  final  relief  would  not  be  granted. — 
Crescent  Co.  v.  Silver  King  Co.,  14  Utah  57,  45  P.  1093. 
Though  to  enjoin  they  will  not  require  so  strong  a  case  as  on 
final  hearing.— Buskirk  v.  King,  72  F.  22, 18  C.  C.  A.  418.  And 
it  may  be  allowed  although  the  proving  up  is  not  yet  complete. 
—Maloney  v.  King,  25  Mont.  188,  64  P.  351,  21  M.  R.  278. 

The  distinction  between  the  class  of  cases  where  injunction 
will  issue  to  restrain  timber  cutting  and  where  it  will  be 
treated  as  a  mere  trespass  remediable  only  at  law  is  well  stated 
in  Gray  Lumber  Co.  v.  Gaskin,  122  Ga.  342,  50  S.  E.  164. 

An  oil  well  which  as  yet  has  struck  nothing  is  not  doing 
irreparable  injury. — Martin  v.  Danziger,  21  Cal.  App.  563, 132 
P.  284. 

Inspecific  Decree. 

A  writ  will  not  be  allowed  against  "working  any  vein  hav- 
ing its  apex  in  complainants'  claim."  This  would  require 
defendants  to  ascertain  from  what  acts  they  are  enjoined. — 
St.  Louis  Co.  v.  Montana  Co.,  supra.  But  in  Clark,  Montana 
Co.  v.  Butte  Co.,  a  suit  to  quiet  title,  it  was  held  that  the  de- 
cree could  not  be  more  specific  in  such  a  case  than  the  develop- 
ment on  surface,  and  was  allowed  in  general  terms. — 233  F. 
548. 


INJUNCTION.  465 

Injuries  Other  Than  Mining  Ore. 

An  injunction  will  issue  to  restrain  the  destruction  of  flumes 
or  ditches.— Power  v.  Klein,  11  Mont.  159,  27  P.  513 ;  Miocene 
D.  Co.  v.  Jacobsen,  146  P.  680,.  77  C.  C.  A.  106.  Or  a  pipe  line. 
—Brookshire  Oil  Co.  v.  Casmalia  Co.,  151  Cal.  577,  91  P.  383. 
Or  to  stay  the  running  of  an  incline  drift  to  cut  off  an  ad- 
versary's tunnel.— Montana  Co.  v.  Clark,  16  M.  E.  81,  42  P. 
626.  Against  assaulting  workmen  and  threats  to  blow  up  the 
mine. — Rankings  Appeal  (Pa.),  16  Atl.  82.  Against  sale  of 
mining  stock  on  the  ground  of  its  fluctuating  value. — McLure 
v.  Sherman,  70  P.  190;  Currie  v.  Jones,  138  N.  C.  189,  50  S.  E. 
560.  Refused  against  cutting  timber  on  claim  where  defendant 
solvent  and  the  timber  of  no  special  need  to  the  mine. — Heaney 
v.  Butte  Co.,  10  Mont.  590,  27  P.  379.  Refused  against  use  of 
adits  underlying  plaintiff's  ground. — Boston  Co.  v.  Montana 
Co.,  23  Mont.  557,  59  P.  919. 

It  may  be  allowed  against  an  option  holder  in  default  in  his 
installments.— Williams  v.  Long,  129  Cal.  229,  61  P.  1087,  20 
M.  R.  738.  A  defendant  can  not  be  enjoined  from '"entering 
or  trespassing  upon"  ground  of  which  he  is  already  in  pos- 
session.— Id. 

Defendant  enjoined  from  dumping  with  election  to  remove 
the  deposited  waste  or  pay  damages. — White  v.  Lansing,  119 
App.  Div.  584,  103  N.  Y.'Supp.  1040. 

Where  a  claim  had  been  located  over  plaintiff's  right  of 
way,  the  title  being  in  dispute,  the  Appellate  Court  modified 
the  injunction  against  the  miners  so  as  to  allow  both  mine  and 
road  to  be  operated  pending  the  trial. — Chicago  Ry.  v.  F  err  ell, 
20  Ida.  680,  119  P.  703. 

The  diversion  of  water  previously  appropriated  for  power 
purposes  should  be  enjoined;  decree  quieting  complainant's 
title  is  not  adequate  relief. — Trade  Dollar  M.  Co.  v.  Fraser, 
148  P.  585,  79  C.  C.  A.  37. 

A  party  against  whom  a  judgment  in  trespass  for  taking  ore 
is  being  sought  may  be  enjoined  for  the  protection  of  the  an- 


466  INJUNCTION. 

ticipated  judgment. — Montana  Co.  v.  St.  Louis  Co.,  168  F. 
514,  93  C.  C.  A.  536. 

Negative  covenants  in  coal  lease  enforced  by  injunction. — 
Sharum  v.  Whitehead,  223  F.  282,  138  C.  C.  A.  524. 

Nuisance  Cases — Tailings  and  Fumes. 

In  a  proper  case  an  injunction  should  issue  to  restrain  de- 
posit of  tailings.— Fuller  v.  Swan  River  Co.,  12  Colo.  12,  19  P. 
836,  16  M.  R.  252.  Refused  against  upper  mill  where  it  is  using 
all  possible  effort  to  restrain  its  tailings. — Otahcite  Co.  v. 
Dean,  102  F.  929,  20  M.  R.  688. 

Injunction  against  pollution  of  stream,  with  leave  to  defend- 
ant  to  apply  for  modification. — Arizona  Copper  Co.  v.  Gil- 
lespie,  230  U.  S.  47,  33  Sup.  Ct.  Rep.  1004,  57  L.  Ed.  1384. 

The  case  of  Bliss  v.  Anaconda  Co.,  167  F.  342,  was  a  test  case 
by  the  farming  interests  against  the  immense  copper  smelter  at 
Butte.  The  Court  refused  the  injunction  prayed  for,  but  held 
the  case  open  in  hope  of  an  equitable  adjustment. 

For  another  instance  where  the  relief  prayed  for  would  in- 
volve the  destruction  of  large  vested  interests,  see  McCarthy  v. 
Bunker  Hill  Co.,  164  F.  927,  92  C.  C.  A.  259. 

Practice — Answer  Not  Conclusive. 

As  a  rule,  in  equity  pleading  where  the  defendant  denies 
the  allegations  of  the  bill  in  terms,  the  writ  will  not  issue;  but 
where  the  bill  is  supported  by  affidavits,  and  is  filed  to  restrain 
irreparable  mischief  by  the  working  of  a  mine,  and  the  bill, 
answer  and  supporting  affidavits  being  considered  together,  the 
case  appears  as  stated— for  the  preservation  of  the  subject 
matter  of  the  controversy  and  as  a  rule  limited  in  its  applica- 
tion to  mining  cases  and  others  standing  on  analogous  facts, 
where  the  substance  and  not  merely  the  use 'is  in  jeopardy — 
the  answer  is  not  to  be  taken  as  conclusive,  if  there  remain  to 
the  complainant  such  a  showing  as  is  above  stated. 


INJUNCTION.  467 

Plaintiff  held  entitled  to  injunction  against  violence,  al- 
lliouLih  all  allegations  of  complaint  denied  by  the  answer.  The 
practice  in  mining  litigation  is  liberal  to  enjoin  to  prevent 
either  party  from  getting  unfair  advantage. — S afford  v.  Flem- 
ming,  13  Ida.  271,  89  P.  827. 

The  Venue  Is  Usually  Fixed  by  the  Code  and  Commonly  in 

the  county  where  the  land  lies.  When  not  so  fixed,  the  Court 
having  jurisdiction  over  the  person  may  enjoin  the  working  of 
a  mine  in  another  county. — Jennings  v.  Beale,  158  Pa.  283,  27 
Atl.  948.  But  not  in  another  State. — Lindsley  v.  Union  Co.,  26 
Wash.  301,  66  P.  382,  21  M.  R.  586 ;  Johnstown  Co.  v.  Butte 
Co.,  60  App.  Div.  344,  70  N.  Y.  Supp.  257.  Compare  Butter- 
field  v.  Nogales  Co.,  9  Ariz.  212,  80  P.  345. 

Notice. 

The  usual  period  of  notice  to  defendant  is  five  days,  but  the 
statute  merely  requires  a  notice  "in  proportion  to  the  urgency 
of  the  case." — Code,  Sec.  164.  And  where  the  defendant  prays 
further  time  to  answer,  it  is  usual,  on  slight  showing,  to  grant 
a  restraining  order  or  preliminary  writ. 

In  many  States  the  writ  of  injunction  issues  at  once  upon 
complainant's  showing,  and  the  issue  comes  before  the  Court 
upon  motion  to  dissolve.  In  Colorado  a  reasonable  notice  is 
required  to  be  given  before  the  writ  can  issue,  which  allows 
the  defendant  opportunity  to  file  his  answer;  so  that  the  argu- 
ment is  heard  usually  upon  the  original  motion  for  an  injunc- 
tion and  not  upon  the  motion  to  dissolve. 

FORM  OF  INJUNCTION  NOTICE. 

STATE  OF  COLORADO,  County  of  Lake:  ss. 

In  the  District  Court  of  said  County. 
Benjamin  S.  Phillips,  Plaintiff,  v.  Frank  M.   Taylor  and  Thomas  L. 

Wood,  Defendants. — Injunction. 
To  the  above-named  Defendants: 

You  and  each  of  you  will  take  notice  that  the  said  plaintiff  will  apply 
to  Hon.  Charles  Mott  Cavender,  Judge  of  said  Court,  at  the  court  house, 


468  INJUNCTION. 

in  Bed  Cliff,  County  of  Eagle,  in  said  state,  at  the  hour  of  two  o'clock 
p.  m.,  on  the  10th  day  of  January,  A.  D.  1916,  or  as  soon  thereafter  as 
counsel  can  be  heard,  when  and  where  you  may  attend  as  you  see  fit — for 
a  writ  of  injunction  to  restrain  and  enjoin  you  and  each  of  you,  your 
agents,  attorneys,  lessees,  sub-lessees,  employees,  and  all  persons  under 
or  in  privity  with  you,  from  working,  mining,  extracting  or  carrying 
away  ore  from  the  Fair  Deceiver  Lode  Mining  Claim,  situate  on  Car- 
donate  Hill,  in  California  Mining  District,  in  said  County  of  Lake,  and 
for  other  relief;  and  that  plaintiff  will  support  the  application  by  the 
complaint,  affidavits,  maps  and  documentary  evidence. 
Cripple  Creek,  January  4,  1916. 

WM.  N.  VAILE, 
Attorney  for  Plaintiff. 

Ex  Parte  Writs  to  Enjoin  the  Working  of  a  Mine  Are  For- 
bidden by  statute. — Code,  Sec.  164. 

It  has  been  ruled  that  to  enjoin  the  sale  or  removal  of  the 
ore  is  not  an  injunction  against  mining. — Benton  v.  Hopkins, 
31  Colo.  518,  74  P.  891.  This  was  an  exceptional  case,  but  it  is 
obvious  that  in  most  instances  such  an  order  would  be  in  viola- 
tion of  the  spirit  of  the  Act. 

Practice  on  Hearing. 

The  notice  having  been  served,  the  complainant  presents 
his  bill  of  complaint  to  the  Court,  or  judge  at  chambers.  If 
the  complaint  has  not  been  filed  or  a  copy  served  with  the 
notice,  it  is  usual  to  allow  defendant  a  reasonable  time  to 
answer. 

A  demurrer  is  rarely  interposed  to  a  bill  stating  fully  the 
complainant's  case.  And  if  interposed  and  not  sustained,  the 
defendant  is  not  in  position  to  ask  for  time  to  answer  over. 

The  complainant  with  his  bill,  and  the  defendant  with  his 
answer,  may  file  affidavits  in  support  of  the  bill  and  answer 
respectively,  and  this  is  usually  advisable. 

The  answer  being  presented,  and  denying  fully  the  merits 
of  the  bill,  the  Court  may  either  hear  the  case  on  bill,  and 
answer  with  their  supporting  affidavits,  or  refer  the  matter  to 
a  master  or  referee  to  take  testimony. 


INJUNCTION.  469 

The  Court  may  award  damages  for  the  ore  taken,  with  the 
writ  on  the  final  hearing.— Mitchell  v.  Big  Six  Co.,  186  F.  552. 

Working  Under  View  of  Court. 

Where  the  defendant  is  solvent  and  working  in  miner-like 
manner  and  the  case  of  plaintiff  not  free  from  doubt,  it  is  not 
unusual  for  the  Court  to  allow  the  defendant  to  keep  at  work 
under  conditions  of  accounting  to  the  Court  at  monthly  inter- 
vals, and  of  submitting  to  the  inspection  of  some  person  on 
behalf  of  plaintiff  and  paying  the  net  or  gross  proceeds  into 
Court,  according  to  the  nature  of  the  case  and  the  framing  of 
the  order. 

An  indemnity  bond  may  be  required  when  the  defendant  is 
allowed  to  keep  at  work. — Stewart  Co.  v.  Ontario  Co.,  23  Ida. 
280,  129  P.  932. 

Injunction  After  Appeal  Taken. 

The  practice  is,  where  the  defendant  in  the  suit  or  issue  at 
law  obtains  judgment,  to  dissolve  the  writ;  on  final  verdict  for 
plaintiff  to  make  the  writ  perpetual. — Boston  Co.  v.  Montana 
Co.,  26  Mont  146,  66  P.  752.  But  the  lower  Court  has  the 
power  (though  it  will  only  be  exercised  in  a  case  where  the 
appeal  has  great  merit  or  doubt)  to  continue  the  injunction 
after  appeal  taken  by  the  plaintiff. — Bullion  Co.  v.  Eureka  Co., 
5  Utah  182,  12  P.  660;  Maloney  v.  King,  27  Mont.  428,  71  P. 
469.  And  in  such  case  the  Supreme  Court  will  not  interfere 
with  it—Sheaffer's  Appeal,  100  Pa.  379.  But  the  appeal  itself 
does  not  stay  the  writ  or  the  suspension  of  the  writ. — Bullion 
Co.  v.  Eureka  Co.,  15  M.  R.  449,  5  Utah  151,  13  P.  174. 

The  Appellate  Court  on  remanding  may  direct  the  lower 
Court  to  order  the  property  preserved  by  injunction. — Er- 
Jiardt  v.  Boaro,  113  U.  S.  537,  28  L.  Ed.  1113,  15  M.  R.  447  ; 
Lockhart  v.  Leeds,  195  U.  S.  427,  25  Sup.  Ct.  Rep.  76,  49  L. 
Ed.  263. 

The  Appellate  Court  may  enjoin. — Ajax  Co.  v.  Triumph  Co., 
30  Colo.  115,  69  P.  523,  22  M.  R.  259.  But  it  will  generally 


470  INJUNCTION. 

leave  the  matter  to  the  discretion  of  the  Court  below. — Steams- 
Roger  Co.  v.  Brown,  114  F.  940,  52  C.  C.  A.  559 ;  McCarthy  v. 
Bunker  Hill  Co.,  164  F.  927,  92  C.  C.  A.  259. 

On  appeal  from  an  order  dissolving  an  injunction  a  super- 
sedeas  continues  the  writ  in  force. — New  River  Co.  v.  Seeley, 
117  F.  981. 

Malicious  Prosecution  Will  Lie  for  Suing  Out  the  Writ 

without  probable-cause,  and  damages,  even  to  the  loss  of  antici- 
pated profits,  may  be  allowed. — Newark  Co.  v.  Upson,  40  Ohio 
St.  17.  But  it  will  not  lie  where  there  was  probable  cause. — 
Wright  v.  Ascheim,  5  Utah  480, 17  P.  125. 

Abuse  of  the  Writ. 

Where  plaintiff,  having  obtained  injunction  against  defend- 
ant's mining,  entered  upon  and  took  possession  of  the  defend- 
ant's works,  restoration  was  ordered  on  motion. — Van  Zandt  v. 
Argentine  Co.,  48  F.  770,  2  McCrary  642,  7  M.  E.  634. 

Verification. 

Both  bill  and  answer  should  be  verified,  and  the  answer  must 
be  sworn  to  even  where  the  oath  of  defendant  is  waived  by 
the  proper  clause  to  that  effect  in  the  bill.  In  the  latter  case 
the  oath  has  not,  indeed,  the  technical  effect  of  a  sworn  answer, 
but  the  answer  has  its  proper  effect  as  a  plea  and  the  further 
effect  of  an  affidavit  of  the  defendant.  As  to  verification  by 
corporation,  see  Butte  Co.  v.  Montana  Co.,  24  Mont.  125,  60 
P.  1039. 

Bond. 

The  fact  of  a  bond  being  filed  for  the  relief  of  the  defendant, 
if  injured,  is  a  protection  to  him  only  in  theory.  A  bond  is 
seldom  available  to  the  ultimate  vindication  of  the  right :  it  is 
no  lien;  the  measure  of  damages  is  vexed  and  unsettled. — 
Donahue  v.  Johnson,  9  Wash.  187,  37  P.  322;  Coosaic  Co.  v. 


INJUNCTION.  471 

Carolina  Co.,  75  F.  860.  In  the  Federal  Courts  the  damages 
may  be  assessed  upon  dissolution  of  the  writ. — Coosaw  Co.  v. 
Farmers  Co.,  51  F.  107.  There  can  be  no  recovery  on  the  bond 
where  the  writ  was  rightfully  issued. — Yarwood  v.  Cedar 
Canyon  Co.,  37  Wash.  56,  79  P.  483. 

Only  counsel  fees  for  obtaining  the  dissolution,  not  for 
defending  the  suit,  are  recoverable. — Donahue  v.  Johnson,  9 
Wash.  187,  37  P.  322;  Montgomery  v.  Gilbert,  24  Mont.  121, 
60  P.  1038 ;  Quinn  v.  Silka,  19  Colo.  App.  507,  76  P.  555. 

Measure  of  damage  where  coal  mining  had  been  stayed.— 
Quinn  v.  Baldwin  Co.,  19  Colo.  App.  497,  76  P.  552. 

Extension  of  Term. 

In  Stahl  v.  Van  Vleck  an  oil  lessee  had  been  allowed  five 
years  to  complete  his  well,  but  the  lessor  enjoined  and  kept  his 
work  enjoined  for  a  long  time.  The  Court  ruled  that  at  the 
conclusion  of  the  litigation  he  was  entitled  to  as  much  time  as 
he  had  wrongfully  lost  by  the  writ.— 53  Ohio  St.  136,  41  N.  E. 
35,  18  M.  R.  231. 

The  same  ruling  was  made  in  Halla  v.  Rogers,  where  a  placer 
lessee  had  his  term  extended  by  the  Court  to  enable  him  to 
work  out  the  ground  which  the  lessor's  injunction  had  stayed. 
—176  F.  709,  34  L.  R.  A.  (N.  S.)  120, 100  C.  C.  A.  263,  187  F. 
778, 109  C.  C.  A.  626. 

Mandatory  Writ. 

Section  175  of  the  Colorado  Code  provides  that  where  pos- 
session of  a  mine  is  taken  by  violence  or  during  intervals  of 
labor,  a  mandatory  writ  restoring  possession  shall  issue.  This 
act,  passed  originally  in  1874, -has  been  found  effective  to 
accomplish  the  object  intended,  and  the  forcible  dispossession 
of  parties  working  a  mine  is  now  almost  unheard  of.  It  was 
construed  and  enforced  in  Sprague  v.  Locke,  1  Colo.  App.  171, 
28  P.  142. 

A  similar  act  has  been  sustained  by  the  Supreme  Court  of 
Dakota.— Cole  v.  Cady,  2  Dak.  29,  3  N.  W.  322. 


472  INJUNCTION. 

A  hearing  under  this  act  goes  only  to  the  matter  of  the 
unlawful  dispossession  of  the  plaintiff  and  the  writ  leaves  the 
parties  to  their  legal  rights  on  all  other  questions  as  though 
no  such  writ  had  issued. 

An  injunction  mandatory  in  effect  and  implying  affirmative 
acts  from  the  defendants  or  the  surrender  of  possession  of 
premises  is  an  unusual  sort  of  relief,  to  be  granted  with  great 
caution,  but  is  not  without  precedent,  even  as  the  result  of  an 
interlocutory  decree,  and  without  the  aid  of  any  such  statute. 
— Cole  Co.  v.  Virginia  Co.,  Fed.  Gas.  No.  2990,  7  M.  R.  516, 
1  Sawy.  685;  Lehigh  Co.  v.  Trotter,  43  N.  J.  Eq.  185,  7  Atl. 
650,  10  Atl.  608  j  Horsky  v.  Helena  Co.,  13  Mont.  229,  33 
P.  689. 

The  object  of  the  act  is  to  allow  the  Court  or  Judge  to  grant 
speedy  and  practical  relief  whenever  a  party,  in  peaceable  pos- 
session, has  been  ousted  by  force  or  fraud,  without  regard  to 
any  question,  except  the  fact  and  manner  of  dispossession,  and 
for  this  object  it  has  been  held  valid  and  not  unconstitutional 
by  all  or  nearly  all  the  Judges  at  nisi  prius,  and  has  remedied 
one  of  the  greatest  evils  ever  complained  of  in  the  mining 
counties. 

The  Federal  Court  of  Colorado  District,  shortly  after  the 
admission  of  the  State,  declined  to  accept  jurisdiction  under 
this  act.  But  under  the  principle  laid  down  in  the  later  case 
of  Aspen  Co.  v.  Bucker,  28  F.  222,  as  to  United  States  Courts 
exercising  equity  powers  where  conferred  by  State  statute,  it  is 
likely  that  its  jurisdiction  in  a  case  with  proper  parties  would 
not  be  at  this  time  questioned. 

The  practice  under  the  statute  is  peculiar.  As  soon  as  the 
complaint  is  filed  the  Court  is  directed  ipso  facto  to  grant  a 
temporary  writ  restraining  the  working  of  the  claim.  Such 
mandatory  legislative  dictation  to  the  judiciary  is  of  very 
doubtful  validity,  seeming  to  take  away  all  judicial  discretion, 
but  whatever  be  its  proper  construction,  the  other  provisions  of 
the  section  are  not  hurt  by  this  isolated  provision;  they  refer 
merely  to  the  division  of  time  between  the  parties  for  taking 
testimony  and  for  a  speedy  adjudication,  and  forbid  the  use 


INSPECTION  AND  SURVEY,  473 

of  such  a  writ  in  favor  of  a  party  who  procured  his  own  pos- 
session by  violation  of  the  spirit  of  the  act. 

In  framing  bills  under  this  act  it  is  not  advisable  to  pray 
any  relief  further  than  the  preliminary  writ  and  the  restora- 
tion of  possession. 

At  least  five  days'  notice  of  application  must  be  given;  the 
form  on  page  467  is  sufficient  to  the  words  "Writ  of  Injunc- 
tion, ' '  after  which  conclude  as  follows : 

Having  the  force  and  effect  of  a  writ  of  Restitution,  restoring 
plaintiff  to  the  possession  of  the  Fatality  Lode  Mining  Claim,  situated 
in  Grand  Island  Mining  District,  County  of  Boulder,  and  for  a  Temporary 
Injunction  restraining  the  working  of  said  claim  in  accordance  with  the 
terms  of  Section  175  of  the  Code,  and  that  plaintiff  will  support  the 
application  by  the  complaint  and  affidavits. 

Boulder,  January  4,  1916.  LEWIS  S.  YOUXG, 

Attorney  for  Plaintiff. 

County  courts  are  forbidden  by  Colorado  Statute  to  inter- 
fere with  the  enjoyment,  working  or  possession  of  a  mining 
claim.— R.  S.  Sec.  1530. 


INSPECTION  AND  SURVEY. 


Under  section  398  of  the  Colorado  Code  (see  also  R.  S. 
Sees.  4218,  4230),  either  party,  after  suit  is  commenced,  is 
allowed  the  privilege  of  a  survey  and  inspection  of  the  prem- 
ises held  by  the  adverse  party,  after  demand  and  refusal,  and 
after  certain  awkward  and  useless  notices  and  affidavits — the 
sections  cited  being  probably  the  most  complete  instance  of 
involved  and  turgid  composition  ever  found  on  a  statute  bock. 

After  analysis  of  its  clauses  and  throwing  out  such  portions 
as  must  be  discarded  in  order  to  give  grammatical  sense  to  the 
paragraph,  it  seems  that  the  procedure  is  as  follows : 

1.  A  demand  in  writing  is  made  for  permission  to  survey 
and  inspect  some  certain  portion  of  the  premises. 

2.  The  opposite  party  has  three  days  in  which  to  consent  to 
or  refuse  this  demand. 


474  INSPECTION  AND  SURVEY. 

3.  A  refusal  being  had  and  the  three  days  elapsed,  the  party 
presents  to  the  Court  or  Judge  a  petition  under  oath  in  which 
he  must  set  forth  his  interest  in  the  premises  and  "the  reason 
why  it  is  necessary"  that  he  should  have  such  survey  and 
inspection;  stating  the  demand  made  and  the  refusal,  and 
praying  an  order  for  survey  and  inspection. 

4.  The  Court  or  Judge  then  fixes  a  time  and  place  for  hear- 
ing this  petition  and  orders  notice  thereof  to  be  served  at  least 
three  days  before  the  hearing. 

5.  On  the  day  set  the  petition  is  argued  and  may  be  aided 
or  resisted  by  affidavits. 

6.  The  Court  or  Judge,  if  satisfied  that  the  "facts  stated  in 
the  petition  are  true, ' '  makes  the  order. 

Three  inspectors  are  allowed  to  accompany  the  surveyors ; 
an  interference  with  them  is  made  contempt  and  the  costs  are 
taxed  against  the  losing  party. 

This  right  of  inspection  always  existed,  in  Courts  of  Equity 
at  least,  and  has  been  frequently  exercised. — Ennor  v.  Barwell, 
12  M.  R.  101, 1  DeG.  F.  &  J.  529 ;  Lonsdale  v.  Curwen,  3  Bligh 
0.  S.  168,  7  M.  R.  693 ;  Thornburgh  v.  Savage  Co.,  Fed.  Cas. 
No.  13986,  7  M.  R.  667 ;  Dugdale  v.  Robertson,  13  M.  R.  662, 
3  Kay  &  J.  695 ;  Lewis  v.  Marsh,  8  Hare  97,  8  M.  R.  14 ;  Ben- 
nitt  v.  Whitehouse,  28  Beav.  119,  8  M.  R.  17 ;  Stockbridge  Co. 
v.  Cone  Works,  6  M.  R.  317,  102  Mass.  80. 

A  statute  giving  power  to  compel  inspection  is  not  unconsti- 
tutional or  oppressive. — St.  Louis  Co.  v.  Montana  Co.,  9  Mont. 
288,  23  P.  510, 17  M.  R.  283 ;  Montana  Co.  v.  St.  Louis  Co.,  152 
U.  S.  160,  14  Sup.  Ct.  Rep.  506,  38  L.  Ed.  398 ;  In  re  Carr, 
52  Kan.  688,  35  P.  818;  Howe's  Co.  v.  Howe's  Ass'n,  34  N.  Y. 
Supp.  848.  And  it  may  be  ordered  without  statute. — Blue  Bird 
Co.  v  Murray,  9  Mont.  468,  23  P.  1022. 

It  is  now  the  recognized  practice  in  mining  contests,  on  the 
application  of  the  party  out  of  possession,  to  direct  a  survey  of 
the  mine.— Penny  v.  Central  Coal  Co.,  138  F.  769,  71 
C.  C.  A.  135. 


INSPECTION  AND  SURVEY.  475 

Cost  of  pumping  compelled  by  Court  to  aid  inspection, 
allowed  to  defendant  in  suit  on  injunction  bond. — Tyler  Co.  v. 
Last  Chance  Co.,  90  F.  16,  32  C.  C.  A.  498,  19  M.  R.  525. 

Inspection  should  be  allowed  to  keep  pace  with  development ; 
and  it  piay  be  allowed  through  opposing  parties'  shaft. — State 
v.  District  Court,  29  Mont.  105,  74  P.  132.  Defendants  to 
prove  that  their  discovery  was  on  a  vein  formation  gave  evi- 
dence of  the  formation  and  conditions  at  the  Hercules  Lode,  a 
vein  in  the  same  locality  in  their  exclusive  possession,  but 
refused  permission  to  plaintiff  to  inspect  the  Hercules.  The 
case  was  reversed  for  such  manifest  unfairness  at  the  trial. — 
Ambergris  M.  Co.  v.  Day,  12  Ida.  108,  85  P.  109. 

The  inspection  should  be  confined  to  the  premises  in  con- 
troversy, except  where  examination  further  is  shown  to  be 
material,  and  the  Court  can  not  exclude  evidence  as  a  penalty 
for  refusing  to  allow  an  inspection. — Smuggler  Union  Co.  v. 
Kent,  47  Colo.  320,  112  P.  223. 

In  California  a  stockholder  has  the  right  to  examine  the 
mine  and  to  take  an  expert  with  him. — Hobbs  v.  Davis,  168 
Cal.  556,  143  P.  733.  In  Kinard  v.  Ward  the  penalty  against 
officer  refusing  permission  was  recovered. — 21  Cal.  App.  85, 
130  P.  1196. 

The  statutory  right  to  inspect  includes  the  right  to  take 
samples  for  assay. — Symmes  v.  Sierra  Nevada  Co.,  171  Cal. 
427, 153  P.  710. 

Inspection  may  be  ordered  of  gas  wells. — Culbertson  v.  lola 
Co.,  87  Kan.  529,  Ann.  Cas.  1914A,  610,  125  P.  81. 

Survey  Without  Suit. 

A  statute  of  Montana  authorizes  a  survey  by  order  of  Court 
without  institution  of  suit  and  it  has  been  held  that  this  is 
due  process  of  law. — Montana  Co.  v.  St.  Louis  Co.,  152  U.  S. 
160,  14  Sup.  Ct.  Rep.  506,  38  L.  Ed.  398.  But  it  requires  an 
express  statute  to  allow  of  any  such  unusual  procedure. — State 
v.  Dist.  Court,  26  Mont.  396,  68  P.  570.  69  P.  103;  National  Co. 


*/•(»  INSPECTION  AND  SURVEY. 

? 

v.  Dist.  Court,  34  Nev.  67, 116  P.  996.  And  the  Colorado  Stat- 
ute can  not  be  construed  to  allow  it  without  a  supporting  suit 
already  begun.— People  v.  De  France,  29  Colo.  309,  68  P.  267, 
22  M.  K.  61.  In  later  cases  from  Montana,  the  Court  defines 
the  essential  limitations  and  conditions  which  should  be 
imposed  on  petitions  of  this  kind. — State  v.  District  Court,  28 
Mont.  528,  73  P.  230,  30  Mont.  206,  76  P.  206. 

It  may  be  allowed  when  defendant's  secret  workings  are 
approaching  plaintiff's. — State  v.  District  Court,  26  Mont.  483, 
68  P.  861. 

View  by  Court  or  Jury. 

Under  the  Colorado  Code,  Sec.  206,  either  party  may 
demand  that  the  jury  view  the  mine.  The  better  practice  of 
the  Federal  Court  in  the  same  State  is  never  to  permit  it.  The 
arguments  in  favor  of  a  jury  view  in  such  cases  are  plausible, 
but  not  enough  to  offset  the  inconvenience  and  often  the  unfair- 
ness of  such  view.  Barring  exceptional  instances,  unless  by 
the  compulsion  of  a  statute,  it  ought  never  to  be  allowed.  But 
where  such  view  has  been  had  an  Appellate  Court  may  con- 
sider it  conclusive  as  to  what  the  jury  saw  on  the  ground. — 
Ormund  v.  Granite  Mt.  Co.,  11  Mont.  303,  28  P.  289 ;  McCor- 
mick  v.  Parriott,  33  Colo.  382,  80  P.  1044;  Elner  Co.  v.  Alaska 
Co.,  210  F.  599,  127  C.  C.  A.  235 ;  Esselstyn  v.  U.  S.  Corp.,  59 
Colo.  294,  149  P.  93.  But  see  White  v.  Barling,  36  Mont.  413, 
93  P.  348. 

A  party  to  the  suit  may  be  appointed  a  guide  to  show  the 
jury  the  mine.— Wilson  v.  Harnette,  32  Colo.  172,  75  P.  395. 

In  Golden  v.  Murphy,  27  Nev.  379,  75  P.  625,  76  P.  29,  the 
trial  Judge  personally  inspected  the  mine  along  with  the  jury, 
and  the  jury  finding  for  the  defendants  the  Judge  granted  a 
new  trial.  The  defendants,  very  justly  as  it  seems  to  us,  con- 
tended that  this  took  the  facts  from  the  jury,  but  the  Appellate 
Court  sustained  the  judgment  on  other  grounds. 

In  Wall  v.  U.  8.  M.  Co.,  232  F.  613,  is  stated  the  effect  as 
evidence  of  a  personal  view  by  the  trial  Judge,  holding  that  the 
weight  of  authority  is  that  it  adds  evidence  instead  of  being 


STATUTE  OP  LIMITATIONS.  477 

merely  for  the  better  understanding  of  the  testimony.  Both 
in  this  case  and  in  Clark  Co.  v.  Butte  Co.,  233  F.  547,  568,  there 
was  such  a  view,  and  the  consideration  of  both  cases  shows 
what  little  value  is  to  be  expected  from  such  practice. 


STATUTE  OF  LIMITATIONS. 


Suit  to  Annul  Patent. 

Sec.  8.  That  suits  by  the  United  States  to  vacate  and  annul  any  patent 
heretofore  issued  shall  only  be  brought  within  five  years  from  the  passage 
of  this  act,  and  suits  to  vacate  and  annul  patents  hereafter  issued  shall 
only  be  brought  within  six  years  after  the  date  of  the  issuance  of  such 
patents.  •  »  *  — A.  C.  March  3,  1891,  S6  Stat.  L.  1099,  2  Comp.  St. 
p.  1521. 

The  above  section  was  enforced  in  Peabody  Co.  v.  Gold  Hill 
Co.,  106  F.  241,  21  M.  R.  151.  But  held  not  to  apply  where 
the  fraud  had  been  concealed. — U.  8.  v.  Exploration  Co.,  203 
F.  387,  121  C.  C.  A.  491,  225  F.  854,  235  F.  110. 

Possessory  Title  Perfected  by  Time. 

Section  2332  of  the  United  States  Statutes  expressly  recog- 
nizes possession  of  a  mining  claim  during  the  period  fixed  by 
the  State  Act  as  sufficient  to  establish  a  right  thereto. — 420 
Mining  Co.  v.  Bullion  Co.,  9  Nev.  240,  1  M.  R.  114.  And  a 
claim  may  be  sued  for  under  the  title  so  developed. — Glacier 
Mt.  Co.  v.  Willis,  127  U.  S.  472,  8  Sup.  Ct.  Rep.  1214,  32  L.  Ed. 
172,  17  M.  R.  127.  Such  title  by  continued  possession  is  equiv- 
alent to  location. — Altoona  Co.  v.  Integral  Co.,  114  Cal.  100, 
45  P.  1047. 

The  apparently  clear  construction  of  Sec.  2332  is  that  in 
ex  parte  cases  an  applicant  for  patent  may  rely  on  his  con- 
tinued possession  without  producing  abstract  of  title,  and  that 
a  party  in  like  position  could  adverse  on  the  same  ground. — 
29  L.  D.  401.  And  that  if  an  adverse  claim  was  filed,  in  the 
suit  supporting  such  adverse  either  party  could  rely  on  such 


478  STATUTE  OF  LIMITATIONS. 

possession  until  defeated  by  the  production  of  some  superior 
title.  And  such  is  the  import  of  the  above  citations.  But  in 
Montana  and  Colorado  the  section  has  been  construed  as  a  mere 
permission  to  support  patent  applications  on  possession,  in 
non-contested  cases. — McCowan  v.  Maclay,  16  Mont.  234,  40  P. 
602 ;  Cleary  v.  Skiffich,  21  M.  R.  284,  28  Colo.  362,  89  Am.  St. 
Rep.  207,  65  P.  59. 

Bismarck  Mtn.  Co.  v.  N.  Sunbeam  Co.,  an  adverse  claim  suit, 
cites  the  Skiffich  case,  and  decides  that  possession  for  the  statu- 
tory period  makes  good  title.— 14  Ida.  516,  95  P.  14. 

Adverse  possession  for  the  statutory  period  gives  title. — 
Cox  v.  Clough,  70  Cal.  345,  11  P.  732 ;  Herriman  Co.  v.  Butter- 
field  Co.,  19  Utah  453,  57  P.  537,  51  L.  R.  A.  930 ;  Lavagnino 
v.  Uhlig,  26  Utah  1,  99  Am.  St.  Rep.  808,  71  P.  1046,  22 
M.  R.  610. 

Seven  years  complete  the  bar  of  the  statute  in  Colorado 
(R.  S.  Sees.  4084-4093),  but  all  taxes  must  be  paid.— Eber- 
ville  v.  Leadville  Co.,  28  Colo.  241,  64  P.  200.  The  period 
varies  in  every  State,  in  Nevada  being  as  low  as  two  years. — 
South  End  Co.  v.  Tinney,  22  Nev.  19,  35  P.  89,  22  Nev.  221, 
38  P.  401. 

Twenty  years'  continuous  occupation  presumes  a  grant  and 
gives  complete  title.— Central  Co.  v.  Penny,  173  F.  340,  97 
C.  C.  A.  600. 

The  statute  of  limitations  does  not  begin  to  run  while  the 
title  is  in  the  United  States,  except  as  between  parties  both 
of  whom  claim  by  possessory  title  only. — King  v.  Thomas, 
6  Mont.  409,  12  P.  865 ;  Wedbold  v.  Davis,  1  Mont.  107,  14  P. 
865.  Nor  until  the  patent  actually  issues. — South  End  Co.  v. 
Tinney,  22  Nev.  221,  38  P.  401 ;  Clark  v.  Barnard,  15  Mont. 
176,  38  P.  834. 

In  the  case  of  Harris  v.  Equator  Co.,  cited  p.  443,  it  was 
intimated  in  the  opinion  of  the  Court,  that  where  a  party  had 
been  in  possession  of  a  mining  claim  for  the  period  of  the 
statute  of  limitations,  such  fact  raised  a  presumption,  at  least 
against  a  wrongdoer,  that  he  held  under  a  valid  location, 


STATUTE  OF  LIMITATIONS.  479 

without  proof  of  the  various  acts  of  location,  and  such  must 
from  the  nature  of  things  be  the  ultimate  decision  of  all  Courts 
upon  this  point.— deary  v.  Skiffich,  28  Colo.  362,  89  Am.  St. 
Rep.  207,  65  P.  59,  21  M.  R.  284. 

Mining  Proves  Possession. 

The  continuous  working  of  a  mine,  or  even  its  working  dur- 
ing successive  seasons  with  intervening  seasons  during  which 
the  mine  is  left  idle,  according  to  the  custom  of  the  country, 
is  as  complete  an  adverse  possession  as  could  be  gained  by 
agricultural  operations  or  other  acts  of  possession. — Stephen- 
son  v.  Wilson,  37  Wis.  482,  13  M.  R.  408 ;  Wilson  v.  Henry, 
1  M.  R.  152,  35  Wis.  241,  1  M.  R.  157,  40  Wis.  594;  420  M.  Co. 
v.  Bullion  Co.,  Fed.  Gas.  No.  4989,  11  M.  R.  608,  3  Sawy.  634; 
Bell  v.  Denson.  56  Ala.  444. 

Gordon  v.  Park,  219  Mo.  600,  117  S.  W.  1163,  is  a  full  case 
on  the  issue  of  adverse  possession  between  the  surface  owner 
and  the  mineral  claimant. 

Digging  prospect  holes  and  desultory  work,  though  contin- 
ued for  the  statutory  period,  is  not  such  possession  as  the  law 
requires.— Pacific  Co.  v.  Pioneer  Co.,  205  F.  577,  123 
C.  C.  A.  593. 

Elements  of  Adverse  Possession. 

To  make  adverse  possession  available  there  must  be : 

First — The  occupation  or  use  of  the  land. 

Second — Claim  and  color  of  title. 

It  has  been  ruled  that  a  party  following  a  patented  vein  on 
its  strike  beyond  its  side  lines  has  not  sufficient  color  of  title 
to  maintain  such  defense. — Lebanon  Co.  v.  Rogers,  8  Colo.  34, 
5  P.  661.  And  that  mining  on  a  vein  apexing  outside  the 
party's  claim  is  not  adverse  possession. — Davis  v.  Shepherd, 
31  Colo.  141,  72  P.  57,  22  M.  R.  575. 

Possession  under  title  bond  gives  claim  and  color  after  pay- 
ment of  purchase  money. — Woods  v.  Montevallo  Co.,  84  Ala. 
560,  5  Am.  St.  Rep.  393,  3  So.  475. 


480  STATUTE  OF  LIMITATIONS. 

In  instances  the  title  may  ripen  without  being  initiate  on 
any  paper.— Minnesota  Co.  v.  Brasier,  18  Mont.  444,  45  P.  632 ; 
Risch  v.  Wiseman,  36  Or.  484,  78  Am.  St.  Rep.  783,  59  P.  1111, 

20  M.  R.  409. 

Possession  under  an  invalid  location  makes  color  of  title. — 
Protective  Co.  v.  Forest  City  Co.,  51  Wash.  643,  99  P.  1033. 

The  possession  of  the  claim  must  be  open  and  notorious. — 
Hamilton  v.  Southern  Nevada  Co.,  15  M.  R.  314,  33  F.  562, 
13  Sawy.  113.  And  exclusive  and  hostile. — Tyee  M.  Co.  v. 
Langstedt,  121  F.  710,  58  C.  C.  A.  129.  Secret  underground 
mining  will  not  start  the  bar. — Pierce  v.  Barney,  209  Pa.  132, 
58  Atl.  152. 

In  Trespass. 

As  to  actions  of  trespass  for  coal  or  ore  taken  but  the  fact 
not  ascertained  by  plaintiff  within  the  statutory  period,  see 
Lewey  v.  Prick  Co.,  166  Pa.  536,  45  Am.  St.  Rep.  684,  28 
L.  R,  A.  283,  31  Atl.  261,  18  M.  R.  179;  Williams  v.  Pomeroy 
Co.,  6  M.  R.  195,  37  Ohio  St.  583;  Bullion  Co.  v.  Eureka  Hill 
Co.,  36  Utah  329,  103  P.  881. 

And  as  to  that  class  of  cases  (as  in  secret  undermining) 
where  a  long  interval  may  elapse  before  the  resulting  injury, 
see  Hall  v.  Duke  of  Norfolk,  L.  E.  (1900),  2  Ch.  493;  Sterrett 
v.  Northport  Co.,  30  Wash.  164, -70  P.  266;  Noonan  v.  Pardee, 

21  M.  R.  517,  200  Pa.  474,  86  Am.  St.  Rep.  722,  55  L.  R.  A. 
410,  50  Atl.  255. 

In  Lightner  Co.  v.  Lane,  161  Cal.  689,-  Ann.  Gas.  1913C, 
1093,  120  P.  771,  it  was  held,  construing  the  Statute  of  Cali- 
fornia, that  it  did  not  begin  until  plaintiff  had  knowledge  of 
the  secret  underground  trespass. 

Surface  Support  Cases. 

In  Pennsylvania  it  was  held  that  the  statute  began  to  run 
"when  the  support  of  the  surface  was  so  weakened  that  if 
might  fall."— Tischler  v.  Penn.  C.  Co.,  218  Pa.  82,  66  Atl.  088. 


BUREAU  OF  MIXES.  481 

In  a  surface  support  case  the  statute  does  not  begin  to  run 
until  actual  injury  has  begun  to  occur. — West  Pratt  Co.  v 
Dorman,  161  Ala.  389,  135  Am.  St.  Rep.  127,  18  Ann.  Cas. 
750,  23  L.  R.  A.  (N.  S.)  805,  49  So.  849. 

Miscellaneous  Cases. 

As  to  the  running  of  the  statute  where  money  is  to  be  paid 
out  of  the  proceeds  of  the  mines,  see  Charter  Oak  Co.  v. 
Stephens,  5  Utah  319,  15  P.  254. 

Where  a  mine  has  been  flooded  by  the  negligence  of  an 
adjoiner,  the  statute  begins  to  run  from  the  date  of  the  flood- 
ing.— Duff  v.  U.  S.  Gypsum  Co.,  189  F.  234. 

Apex  Rights. 

Adverse  possession  for  the  legal  period  gives  the  claimant 
all  lodes  apexing  within  his  lines  and  the  right  to  follow  these 
on  the  dip,  but  whether  a  lode  excluded  from  a  town  site  patent 
could  claim  extralateral  rights  was  not  decided. — Golden  v. 
Murphy,  31  Nev.  395,  103  P.  394,  105  P.  99. 


BUREAU  OF  MINES. 


By  R.  S.  Colo.  Sees.  4259-4306,  are  prescribed  the  duties  of 
the  Bureau  of  Mines,  of  the  Commissioner  of  Mines  and  three 
inspectors  of  metalliferous  mines,  with  strict  provisions  for 
safeguarding. 

They  regulate  the  storage  of  explosives,  escape  ways,  com- 
partment shafts,  signals  and  ventilators,  and  forbid  the  use  of 
iron  tamping  bars. 

They  require  all  serious  accidents  to  be  reported  and  investi- 
gated and  provide  penalties  for  failure  to  comply  with  the 
provisions  of  the  act. 

Other  States  have  like  legislation,  and  a  Federal  Bureau  of 
Mines  was  established  by  A,  C.  of  1910.— 36  St.  L.  369,  37 
Id.  681. 


482  ASSAYS. 

ASSAYS. 


Gold,  silver  and  platinum  are  assayed  for  the  number  of 
ounces  per  ton  of  ore;  lead,  copper,  zinc  and  the  base  metals 
generally  for  the  per  cent  of  the  minerals  in  the  ore. 

An  assay  is  the  test  of  the  value  of  a  specimen  or  quantity 
of  ore  by  the  extraction  of  the  amount  of  silver,  gold  or  other 
metal  contained  in  a  minute  but  exact  fraction,  which  amount 
is  supposed  to  be  proportionate  to  the  whole  amount  found  in 
the  quantity  from  which  the  fraction  was  obtained.  Supposing 
the  assay  to  be  correct,  its  importance  in  determining  the 
quantity  of  metal  in  the  ore  of  the  mine,  or  the  value  of  the 
mine  as  deduced  from  its  ore  product,  depends  on  the  size  of 
the  lot  from  which  it  was  obtained,  and  the  manner  in  which 
such  lot  was  selected.  What  are  called  specimen  assays  are 
of  no  value  whatever,  further  than  to  show  the  contents  of  the 
identical  specimen  from  which  made,  but  are  often  used  to 
deceive  persons  ignorant  in  such  matters. 

While  the  assay  shows  only  the  contents  of  that  portion  of 
ore  that  has  been  assayed,  its  importance  lies  in  its  acceptance 
as  indicating  the  contents  of  other  ore,  of  which  the  portion 
assayed  was  a  "sample." 

Between  buyer  and  seller  ore  is  usually  sampled  by  the 
former,  under  supervision  of  the  latter,  if  he  choose  to  be 
present.  The  sample  taken  (pulverized)  is  divided  into  por- 
tions— one  for  the  buyer,  one  for  the  seller,  and  one  to  be  kept 
for  reference  in  case  of  difference  between  the  other  two.  After 
division,  each  portion  is  in  itself  a  sample.  Both  buyer  and 
seller  have  a  control  assay  (assay  in  duplicate)  made  of  their 
respective  samples.  The  sale  is  customarily  made  on  the  assay 
of  the  buyer,  and  the  sample  of  the  seller  is  intended  for  a 
check  on  the  assay  of  the  buyer. 

The  results  of  carefully  made  assays  should  not  differ  more 
than  two  ounces  silver  or  two-tenths  ounce  gold  except  where 
the  ore  contains  much  free  gold,  native  silver  or  silver  glance, 
the  particles  of  which  can  not  be  reduced  to  exact  evenness, 


ASSAYS.  483 

and  make  assays  of  these  classes  of  ore  treacherous.  In  case  of 
disagreement,  the  third  portion  of  the  original  sample,  called 
the  umpire,  is  tested  by,a  third  party  for  a  control,  and  this 
assay  is  final  unless  there  be  such  unusual  and  excessive  varia- 
tion as  to  suggest  the  necessity  of  resampling. 

The  fire  assay  shades  slightly  in  favor  of  the  buyer,  but  all 
processes  pretending  to  secure  substantially  more  gold  than 
that  shown  by  the  fire  assay  are  frauds. 

The  intent  of  an  assay  is  to  show  the  true  value  of  the  ore, 
and  if  it  is  so  taken  as  not  to  show  such  value,  proof  of  assays 
otherwise  taken  may  be  given  in  evidence. — Phipps  v.  Hully, 
18  Nev.  133,  15  M.  R.  350,  1  P.  669.  Difference  in  results  of 
wet  and  fire  assays. — In  re  Puget  Co.,  96  F.  90. 

Sales  based  on  assay  are  not  bound  by  the  assay  in  case  of 
gross  error. — Cox  v.  Prentice,  3  M.  &  S.  344.  As  to  the  custom 
of  assayers,  and  of  which  party,  if  of  either,  he  is  the  agent, 
see  this  case  and  Trotter  v.  Heckscher,  40  N.  J.  Eq.  612,  4  All. 
83,  42  N.  J.  Eq.  251,  7  Atl.  353.  As  to  deductions  for  moisture, 
see  this  litigation  continued  in  Lehigh  Co.  v.  Trotter,  42  N.  J. 
Eq.  661,  9  Atl.  694.  Sufficient  proof  by  assay  that  samples 
were  salted  with  powdered  silver. — Mudsill  Co.  v.  Watrous,  61 
F.  163,  9  C.  C.  A.  415,  18  M.  R.  1.  By  assay  with  litharge,  a 
trace  of  silver  may  be  shown  in  any  kind  of  rock. — Ormund  v. 
Granite  Mt.  Co.,  11  Mont.  303,  28  P.  289.  An  assay  of  two  lots 
is  no  proof  of  the  value  of  a  series  of  shipments. — Pittsburg 
Co.  v.  Glick,  1  Colo.  App.  43,  42  P.  188.  Method  of  sampling 
and  assay  on  ore  sales  described. — Chisholm  v.  Eagle  Ore  Co., 
144  F.  670,  75  C.  C.  A.  472. 

A  purchaser  of  phosphate  rock  is  entitled  to  deductions  for 
its  falling  below  agreed  assay,  and  is  not  bound  to  accept  at  all 
if  materially  short.— Stono  Mines  v.  Southern  Co.,  76  S.  C.  327, 
56  S.  E.  982. 

Mill  samples  control  car  samples. — Vietti  v.  Neslitt,  22  Nev. 
390,  41  P.  151,  18  M.  R.  247;  Fox  v.  Hale  Co.,  108  Cal.  369, 
41  P.  308.  The  "assay  value"  of  gold  means  its  universal 
standard  value  and  not  the  value  of  local  gold  bullion. — Id. 


484  SCHOOL  OF  MINES. 

But  a  contract  to  pay  95  per  cent  of  the  silver  contents  of  the 
"product  of  said  ore"  does  not  mean  95  per  cent  of  the  assay 
value  of  the  raw  ore.— Silver  Co.  v.  N.  C.  8m.  Co.,  122  N.  C. 
542,  29  S.  E.  940,  19  M.  R.  339. 

An  assay  is  material  proof  on  an  issue  as  to  whether  certain 
rock  is  mineral  bearing. — Healey  v.  Rupp,  28  Colo.  102,  63 
P.  319,  21  M.  R.  117. 

In  Richardson  v.  National  Reduction  Co.  the  Supreme  Court 
of  Nevada  say  they  will  take  judicial  notice  of  the  fact  that 
amalgamating  and  cyaniding  will  not  effect  an  extraction  of 
100  per  cent  of  the  fire  assay  of  the  metallic  content.  But  it  is 
a  well  knowrn  fact  that  the  smelters  will  extract  full  100  per 
cent  of  the  fire  assay  of  certain  gold  ores. 

•        -    -  A 
Proof  of  Assay. 

An  assay  certificate  does  not  prove  itself;  nor  can  it  be 
proved  by  one  of  the  assaying  firm  who  had  no  personal  knowl- 
edge of  the  assay.— People  v.  Wlialen,  154  Cal.  472,  98  P.  194. 
But  in  Carter  v.  BeU,  LEWIS,  J.,  in  the  U.  S.  Circuit  Court, 
Denver,  ruled  that  wiiere  ore  had  been  paid  for  on  the  strength 
of  an  ore  buyer's  assay,  the  assay  proved  itself,  and  the  assayer 
need  not  be  called. 


SCHOOL  OF  MINES. 


The  General  Assembly  may  provide  that  the  science  of 
mining  and  metallurgy  be  taught  in  one  or  more  of  the  insti- 
tutions of  learning  under  the  patronage  of  the  State. — Colo. 
Const.,  Art.  16,  Sec.  4. 

Under  the  above  provision  the  ' '  School  of  Mines ' '  at  Golden 
is  especially  incorporated,  and  is  supported  by  the  State. 

Its  declared  object  is  to  furnish  "such  instruction  as  is  pro- 
vided for  in  like  technical  schools  of  a  high  grade,"  and  it  is 
authorized  to  confer  degrees. 


LAND  OFFICE  RULES.  485 

The  course  includes  four  years  of  two  terms  each.  These 
are  divided,  after  the  second  year,  into  mining  and  metallur- 
gical engineering. 

Similar  State  schools  are  established  at  Rolla,  Missouri; 
Hought on,  Michigan ;  Rapid  City,  South  Dakota ;  Butte,  Mon- 
tana ;  Moscow,  Idaho ;  Virginia  City,  Nevada ;  Blake,  Utah,  and 
Socorro,  New  Mexico. 

The  Universities  of  Arizona,  California,  Nevada,  North 
Dakota  and  Wyoming  have  special  departments  covering  the 
same  ground. 


LAND  OFFICE  REGULATIONS. 
Re-Issued  by  the  General  Land  Office,  August  6,  1915.* 

NATURE  AND  EXTENT  OF  MINING  CLAIMS. 

1.  Two  Classes  of  Claims. — Mining  claims  are  of  two  dis- 
tinct classes:    Lode  claims  and  placers. 

LODE  CLAIMS. 

2.  The  status  of  lode  claims  located  or  patented  previous 

to  the  10th  day  of  May,  1872,  is  not  changed  with  regard  to  their  extent 
along  the  lode  or  width  of  surface;  but  the  claim  is  enlarged  by  sections 
2322  and  2328,  by  investing  the  locator,  his  heirs  or  assigns,  with  the 
right  to  follow,  upon  the  conditions  stated  therein,  all  veins,  lodes,  or 
ledges,  the  top  or  apex  of  which  lies  inside  of  the  surface  lines  of  his 
claim. 

3.  Possessory  Right  Prior  to  May  10,  1872.— It  is  to  be 

distinctly  understood,  however,  that  the  law  limits  the  possessory  right  to 
veins,  lodes,  or  ledges,  other  than  the  one  named  in  the  original  location, 
to  such  as  were  not  adversely  claimed  on  May  JO,  1872,  and  that  where 
such  other  vein  or  ledge  was  so  adversely  claimed  at  that  date  the  right 
of  the  party  so  adversely  claiming  is  in  no  way  impaired  by  the  provisions 
of  the  Revised  Statutes. 

•These  rules  have  been  repeatedly  reissued  and  alterations  made  in  and 
additions  to  particular  rules,  but  their  numbers  have  not  been  changed 
since  the  issue  of  1901.  They  are  printed  in  full  in  44  L.  D.  285.  For 
rules  of  practice  in  contest  cases  see  44  L.  D.  395. 


486  LAND  OFFICE  RULES. 

4.  Who  May  Locate.— From  and  after  the  10th  May,  1872, 
any  person  who  is  a  citizen  of  the  United  States,  or  who  has  declared  his 
intention  to  become  a  citizen,  may  locate,  record,  and  hold  a  mining  claim 
of  "fifteen  hundred  linear  feet  along  the  course  of  any  mineral  vein  or  lode 
subject  to  location;   or  an  association  of  persons,  severally  qualified  as 
above,  may  make  joint  location  of  such  claim  of  fifteen  hundred  feet,  but 
in  no  event  can  a  location  of  a  vein  or  lode  made  after  the  10th  day  of 
May,  1872,  exceed  fifteen  hundred  feet  along  the  course  thereof,  what- 
ever may  be  the  number  of  persons  composing  the  association. 

5.  Width — Surface  Ground. — With  regard  to  the  extent 

of  surface  ground  adjoining  a  vein  or  lode,  and  claimed  for  the  con- 
venient working  thereof,  the  Revised  Statutes  provide  that  the  lateral 
extent  of  locations  of  veins  or  lodes  made  after  May  10,  1872,  shall  in  no 
case  exceed  three  hiindred  feet  on  each  side  of  the  middle  of  the  vein  at 
the  surface,  and  that  no  such  surface  rights  shall  be  limited  by  any  mining 
regulations  to  less  than  twenty-five  feet  on  each  side  of  the  middle  of  the 
vein  at  the  surface,  except  where  adverse  rights  existing  on  the  10th  May, 
1872,  may  render  such  limitation  necessary;  the  end  lines  of  such  claims 
to  be  in  all  cases  parallel  to  each  other.  Said  lateral  measurements  can 
not  extend  beyond  three  hundred  feet  on  either  side  of  the  middle  of  the 
vein  at  the  surface,  or  such  distance  as  is  allowed  by  local  laws.  For 
example:  400  feet  can  not  be  taken  on  one  side  and  200  feet  on  the 
other.  If,  however,  300  feet  on  each  side  are  allowed,  and  by  reason  of 
prior  claims  but  100  feet  can  be  taken  on  one  side,  the  locator  will  not 
be  restricted  to  less  than  300  feet  on  the  other  side;  and  when  the  locator 
does  not  determine  by  exploration  where  the  middle  of  the  vein  at  the 
surface  is,  his  discovery  shaft  must  be  assumed  to  mark  such  point. 

6.  Size  of  Claim. — By  the  foregoing  it  will  be  perceived 
that  no  lode  claim  located  after  the  10th  May,  1872,  can  exceed  a  par- 
allelogram fifteen  hundred  feet  in  length  by  six  hundred  feet  in  width, 
but  whether  surface  ground  of  that  width  can  be  taken  depends  upon  the 
local  regulations  or  State  or  Territorial  laws  in  force  in  the  several  mining 
districts;  and  that  no  such  local  regulations  or  State  or  Territorial  laws 
shall  limit  a  vein  or  lode  claim  to  less  than  fifteen  hundred  feet  along  the 
course  thereof,  whether  the  location  is  made  by  one  or  more  persons,  nor 
can  surface  rights  be  limited  to  less  than  fifty  feet  in  width  unless  adverse 
claims  existing  on  the  10th  day  of  May,  1872,  render  such  lateral  limita- 
tion necessary. 

7.  Location   Certificate. — Locators   can   not  exercise   too 

much  care  in  defining  their  locations  at  $he  outset,  inasmuch  as  the  law 
requires  that  all  records  of  mining  locations  made  subsequent  to  May  10, 
1872,  shall  contain  the  name  or  names  of  the  locators,  the  date  of  the 
location,  and  such  a  description  of  the  claim  or  claims  located,  by  refer- 


LAND  OFFICE  RULES.  487 

ence  to  some  natural  object  or  permanent  monument,  as  will  identify  the 
claim. 

8.  No  lode  claim  shall  be  located  until  after  the  discovery 

of  a  vein  or  lode  within  the  limits  of  the  claim,  the  object  of  which 
provision  is  evidently  to  prevent  the  appropriation  'of  presumed  mineral 
ground  for  speculative  purposes,  to  the  exclusion  of  bona  fide  prospectors, 
before  sufficient  work  has  been  done'  to  determine  whether  a  vein  or  lode 
really  exists. 

9.  Discovery — Ties — Description. — The    claimant    should, 

therefore,  prior  to  locating  his  claim,  unless  the  vein  can  be  traced  upon 
the  surface,  sink  a  shaft  or  run  a  tunnel  or  drift  to  a  sufficient  depth 
therein  to  discover  and  develop  a  mineral-bearing  vein,  lode,  or  crevice; 
should  determine,  if  possible,  the  general  course  of  such  vein  in  either 
direction  from  the  point  of  discovery,  by  which  direction  he  will  be 
governed  in  marking  the  boundaries  of  his  claim  on  the  surface.  His 
location  notice  should  give  the  course  and  distance  as  nearly  as  practicable 
from  the  discovery  shaft  on  the  claim  to  some  permanent,  well-known 
points  or  objects,  such,  for  instance,  as  stone  monuments,  blazed  trees, 
the  confluence  of  streams,  point  of  intersection  of  well-known  gulches, 
ravines,  or  roads,  prominent  buttes,  hills,  etc.,  which  may  be  in  the 
immediate  vicinity,  and  which  will  serve  to  perpetuate  and  fix  the  locus 
of  the  claim  and  render  it  susceptible  of  identification  from  the  descrip- 
tion thereof  given  in  the  record  of  locations  in  the  district,  and  should 
be  duly  recorded. 

10.  Adjoining    Claims  — Staking— Location— Notice.— In 

addition  to  the  foregoing  data,  the  claimant  should  state  the  names  of 
adjoining  claims,  or,  if  none  adjoin,  the  relative  positions  of  the  nearest 
claims;  should  drive  a  post  or  erect  a  monument  of  stones  at  each  corner 
of  his  surface  ground,  and  at  the  point  of  discovery  or  discovery  shaft 
should  fix  a  post,  stake,  or  board,  upon  which  should  be  designated  the 
name  of  the  lode,  the  name  or  names  of  the  locators,  the  number  of  feet 
claimed,  and  in  which  direction  from  the  point  of  discovery,  it  being 
essential  that  the  location  notice  filed  for  record,  in  addition  to  the  fore- 
going description,  should  state  whether  the  entire  claim  of  fifteen  hundred 
feet  is  taken  on  one  side  of  the  point  of  discovery,  or  whether  it  is  partly 
upon  one  and  partly  upon  the  other  side  thereof,  and  in  the  latter  case, 
how  many  feet  are  claimed  upon  each  side  of  such  discovery  point. 

11.  The  location  notice  must  be  filed  for  record  in  all 

respects  as  required  by  the  State  or  Territorial  laws  and  local  rules  and 
regulations,  if  there  be  any. 

12.  Annual  Labor. — In  order  to  hold  the  possessory  title 
to  a  mining  claim  located  prior  to  May  10,  1872,  the  law  requires  that 


488  LAND  OFFICE  KULES. 

ten  dollars  shall  be  expended  annually  in  labor  or  improvements  for  each 
one  hundred  feet  -in  length  along  the  vein  or  lode.  In  order  to  hold  the 
possessory  right  to  a  location  made  since  May  10,  1872,  not  less  than  one 
hundred  dollars'  worth  of  labor  must  be  performed  or  improvements 
made  thereon  annually.  Under  the  provisions  of  the  Act  of  Congress 
approved  January  22,  1880,  the  first  annual  expenditure  becomes  due 
and  must  be  performed  during  the  calendar  year  succeeding  that  in  which 
the  location  was  made.  Where  a  number  of  contiguous  claims  are  held 
in  common,  the  aggregate  expenditure  that  would  be  necessary  to  hold 
all  the  claims  may  be  made  upon  any  one  claim.  Cornering  locations  are 
held  not  to  be  contiguous. 

13.  Same — Failure    to    Perform. — Failure    to    make    the 

expenditure  or  perform  the  labor  required  upon  a  location  made  before 
or  since  May  10,  1872,  will  subject  a  claim  to  relocation,  unless  the  original 
locator,  his  heirs,  assigns,  or  legal  representatives  have  resumed  work 
after  such  failure  and  before  relocation. 

14.  Same — Not  Required  After  Entry. — Annual  expendi- 
ture is  not  required  subsequent  to  entry,  the  date  of  issuing  the  patent 
certificate  being  the  date  contemplated  by  statute. 

15.  Forfeiture  to  Co-Owner. — Upon  the  failure  of  any  one 
of  several  co-owners  to  contribute  his  proportion  of  the  required  expendi- 
tures, the  co-owners,  who  have  performed  the  labor  or  made  the  improve- 
ments as  required,  may,  at  the  expiration  of  the  year,  give  such  delinquent 
co-owner  personal  notice  in  writing,  or  notice  by  publication  in  the  news- 
paper published  nearest  the  claim  for  at  least  once  a  week  for  ninety 
days;   and  if  upon  the  expiration  of  ninety  days  after  such  notice  in 
writing,  or  upon  the  expiration  of  one  hundred  and  eighty  days  after  the 
first  newspaper  publication  of  notice,  the  delinquent  co-owner  shall  have 
failed  to  contribute  his  proportion  to  meet  such  expenditures  or  improve- 
ments, his  interest  in  the  claim  by  law  passes  to  his  co-owners  who  have 
made  the  expenditures  or  improvements  as  aforesaid.    Where  a  claimant 
alleges  ownership  of  a  forfeited  interest  under  the  foregoing  provision, 
the  sworn  statement  of  the  publisher  as  to  the  facts  of  publication,  giving 
dates,  and  a  printed  copy  of  the  notice  published,  should  be  furnished, 
and   the   claimant   must   swear   that   the   delinquent   co-owner   failed    to 
contribute  his  proper  proportion  within  the  period  fixed  by  the  statute. 


16.  The  effect  of  section  2323,  Revised  Statutes,  is  to  give 

the  proprietors  of  a  mining  tunnel  run  in  good  faith  the  possessory  right 
to  fifteen  hundred  feet  of  any  blind  lodes  cut,  discovered,  or  intersected 
6y  such  tunnel,  which  were  not  previously  known  to  exist,  within  three 
thousand  feet  from  the  face  or  point  of  commencement  of  such  tunnel, 


LAND  OFFICE  EULES.  489 

and  to  prohibit  other  parties,  after  the  commencement  of  the  tunnel, 
from  prospecting  for  and  making  locations  of  lodes  on  the  line  thereof 
and  within  said  distance  of  three  thousand  feet,  unless  such  lodes  appear 
upon  the  surface  or  were  previously  known  to  exist.  The  term  "face," 
as  used  in  said  section,  is  construed  and  held  to  mean  the  first  working 
face  formed  in  the  tunnel,  and  to  signify  the  point  at  which  the  tunnel 
actually  enters  cover;  it  being  from  this  point  that  the  three  thousand 
feet  are  to  be  counted  upon  which  prospecting  is  prohibited  as  aforesaid. 

17.  Tunnel  Notice — Staking. — To  avail  themselves  of  the 

benefits  of  this  provision  of  law,  the  proprietors  of  a  mining  tunnel  will 
be  required,  at  the  time  they  enter  cover  as  aforesaid,  to  give  proper 
notice  of  their  tunnel  location  by  erecting  a  substantial  post,  board,  or 
monument  at  the  face  or  point  of  commencement  thereof,  upon  which 
should,  be  posted  a  good  and  sufficient  notice,  giving  the  names  of  the 
parties  or  company  claiming  the  tunnel  right;  the  actual  or  proposed 
course  or  direction  of  the  tunnel,  the  height  and  width  thereof,  and  the 
course  and  distance  from  such  face  or  point  of  commencement  to  some 
permanent  well-known  objects  in  the  vicinity  by  which  to  fix  and  deter- 
mine the  locus  in  manner  heretofore  set  forth  applicable  to  locations  of 
veins  or  lodes,  and  at  the  time  of  posting  such  notice  they  shall,  in  order 
that  miners  or  prospectors  may  be  enabled  to  determine  whether  or  not 
they  are  within  the  lines  of  the  tunnel,  establish  the  boundary  lines 
thereof,  by  stakes  or  monuments  placed  along  such  lines  at  proper  inter- 
vals, to  the  terminus  of  the  three  thousand  feet  from  the  face  or  point 
of  commencement  of  the  tunnel,  and  the  lines  so  marked  will  define  and 
govern  as  to  specific  boundaries  within  which  prospecting  for  lodes  not 
previously  known  to  exist  is  prohibited  while  work  on  the  tunnel  is  being 
prosecuted  with  reasonable  diligence. 

18.  Record  of  Tunnel. — A  full  and  correct  copy  of  such 

notice  of  location  defining  the  tunnel  claim  must  be  filed  for  record  with 
the  mining  recorder  of  the  district,  to  which  notice  must  be  attached  the 
sworn  statement  or  declaration  of  the  owners,  claimants,  or  projectors 
of  such  tunnel,  setting  forth  the  facts  in  the  case;  stating  the  amount 
expended  by  themselves  and  their  predecessors  in  interest  in  prosecuting 
work  thereon;  the  extent  of  the  work  performed,  and  that  it  is  bona  fide 
their  intention  to  prosecute  work  on  the  tunnel  so  located  and  described 
with  reasonable  diligence  for  the  development  of  a  vein  or  lode,  or  for 
the  discovery  of  mines,  or  both,  as  the  case  may  be.  This  notice  of 
location  must  be  duly  recorded,  and,  with  the  said  sworn  statement 
attached,  kept  on  the  recorder's  files  for  future  reference. 


490  LAND  OFFICE  KULES. 

PLACER  CLAIMS.* 

19.  But  one  discovery  of  mineral  is  required  to  support  a 

placer  location,  whether  it  be  of  twenty  acres  by  an  individual,  or  of  one 
hundred  and  sixty  acres  or  less  by  an  association  of  persons. 

20.  Building  Stone— School  Lands.— The  Act  of  August  4, 

1892,  extends  the  mineral-land  laws  so  as  to  bring  lands  chiefly  valuable 
for  building  stone  within  the  provisions  of  said  law  by  authorizing  a 
placer  entry  of  such  lands.  Registers  and  receivers  should  make  a,  refer- 
ence to  said  act  on  the  entry  papers  in  the  case  of  all  placer  entries  made 
for  lands  containing  stone  chiefly  valuable  for  building  purposes.  Lands 
reserved  for  the  benefit  of  public  schools  or  donated  to  any  State  are  not 
subject  to  entry  under  said  act. 

21.  Petroleum— Oils.— The  Act  of  February  11,  1897,  pro- 
vides  for  the  location  and  entry  of  public  lands  chiefly  valuable  for 
petroleum  or  other  mineral  oils,  and  entries  of  that  nature  made  prior  to 
the  passage  of  said  act  are  to  be  considered  as  though  made  thereunder. 

22.  Same — Field   Examinations. — Upon   the   presentation 
of  every  case  within  the  purview  of  the  Act  of  March  2,  1911  (36  Stat.  L., 
1015),  the  local  officers  must  advise  the  chiefs  of  field  division,  in  order 
that  the  latter  may  make  such  field  examinations  as  are  advisable  or  neces- 
sary, particularly  if  the  land  involved  has  been  embraced  in  a  withdrawal, 
as  to  the  time  when  the  development  work  was  begun,  and  be  prepared  to 
submit  the  results,  if  possible,  before  entry  is  allowed.     Each  such  case 
will  be  considered  and  adjudicated  upon  its  record  in  the  regular  manner. 

Observing  that  the  operation  of  the  act  is  retrospective  only,  being 
confined  to  locations  made  prior  to  the  date  thereof,  you  will,  upon  the 
presentation  of  any  application  for  patent  affected  by  the  provisions  of 
said  act,  immediately  communicate  to  the  proper  chief  of  field  division 
due  and  full  information  thereof,  to  the  end  that  he  may  procure  to  be 
made  such  investigations  as  may  be  necessary  to  ascertain  the  facts 
concerning  the  inception  and  subsequent  prosecution  of  development 
operations,  the  extent  and  character  of  such  works,  and  any  other  facts 
bearing  upon  and  affecting  the  validity  of  the  claim,  including  the 
continuousness  and  diligence  with  which  development  proceeded  from  the 
date  of  inception. 

Report  made  of  the  results  of  such  examinations  will  be  submitted  to 
this  office,  upon  receipt  of  which  the  local  officers  will  be  advised  as  to 
the  action  to  be  taken;  (Instructions,  May  17,  1911,  approved,  July  11, 
1912.) 

*See,  also,  Regulations  58-60. 


LAND  OFFICE  RULES.  491 

23.  Ten-Acre  Tracts.— By  Sec.  2330  authority  is  given  for 

subdividing  forty-acre  legal  subdivisions  into  ten-acre  tracts.  These  ten- 
acre  tracts  should  be  considered  and  dealt  with  as  legal  subdivisions,  and 
an  applicant  having  a  placer  claim  which  conforms  to  one  or  more  of  such 
ten-acre  tracts,  contiguous  in  case  of  two  or  more  tracts,  may  make  entry 
thereof,  after  the  usual  proceedings,  without  further  survey  or  plat. 

24.  Description — Improvements. — A   ten-acre   subdivision 

may  be  described,  for  instance  if  situated  in  the  extreme  northeast  of 
the  section,  as  the  "NE.  %  of  the  NE.  %  of  the  NE.  %"  of  the  section, 
or,  in  like  manner,  by  appropriate  terms,  wherever  situated ;  but,  in  addi- 
tion to  this  description,  the  notice  must  give  all  the  other  data  required 
in  a  mineral  application,  by  which  parties  may  be  put  on  inquiry  as  to 
the  land  sought  to  be  patented.  The  proofs  submitted  with  applications 
must  show  clearly  the  character  and  extent  of  the  improvements  upon 
the  premises. 

25.  The  proof  of  improvements  must  show  their  value  to 

be  not  less  than  five  hundred  dollars  and  that  they  were  made  by  the 
applicant  for  patent  or  his  grantors.  This  proof  should  consist  of  the 
affidavit  of  two  or  more  disinterested  witnesses.  The  annual  expenditure 
to  the  amount  of  $100,  required  by  Sec.  2324,  Kevised  Statutes,  must  be 
made  upon  placer  as  well  as  lode  locations. 

26.  Lode  in  Placer. — Applicants  for  patent  to  a  placer 

claim,  who  are  also  in  possession  of  a  known  vein  or  lode  included  therein, 
must  state  in  their  application  that  the  placer  includes  such  vein  or  lode. 
The  published  and  posted  notices  must  also  include  such  statement.  If 
veins  or  lodes  lying  within  a  placer  location  are  owned  by  other  parties, 
the  fact  should  be  distinctly  stated  in  the  application  for  patent  and  in 
all  the  notices.  But  in  all  eases,  whether  the  lode  is  claimed  or  excluded, 
it  must  be  surveyed  and  marked  upon  the  plat,  the  field  notes  and  plat 
giving  the  area  of  the  lode  claim  or  claims  and  the  area  of  the  placer 
separately.  An  application  which  omits  to  claim  such  known  vein  or  lode 
must  be  construed  as  a  conclusive  declaration  that  the  applicant  has  no 
right  of  possession  to  the  vein  or  lode.  Where  there  is  no  known  lode 
or  vein,  the  fact  must  appear  by  the  affidavit  of  two  or  more  witnesses. 

27.  Size  of  Claim.— By  Sec.  2330  it  is  declared  that  no 
location  of  a  placer  claim  made  after  July  9,   1870,  shall  exceed  one 
hundred  and  sixty  acres  for  any  one  person  or  association  of  persons, 
which  location  shall  conform  to  the  United  States  surveys. 

28.  Conform  to  Public  Survey. — $er.  2331  provides  that 

all  placer-mining  claims  located  after  May  10,  1872,  shall  conform  as 
nearly  as  practicable  with  the  United  States  system  of  public  land  surveys 


492  LAND  OFFICE  EULES. 

and  the  rectangular  subdivisions  of  such  surveys,  and  such  locations  shall 
not  include  more  than  twenty  acres  for  each  individual  claimant. 

29.  Location  by  an  Association. — The  foregoing  provisions 
of  law  are  construed  to  mean  that  after  the  9th  day  of  July,  1870,  no 
location  of  a  placer  claim  can  be  made  to  exceed  one  hundred  and  sixty 
acres,  whatever  may  be  the  number  of  locators  associated  together,  or 
whatever  the  local  regulations  of  the  district  may  allow;  and  that  from 
and  after  May  10,  1872,  no  location  can  exceed  twenty  acres  for  each 
individual  participating  therein;  that  is,  a  location  by  two  persons  can 
not  exceed  forty  acres,  and  one  by  three  persons  can  not  exceed  sixty  acres. 

30.  How  Located.— The  regulations  hereinbefore  given  as 

to  the  manner  of  marking  locations  on  the  ground,  and  placing  the  same 
on  record,  must  be  observed  in  the  case  of  placer  locations  so  far  as  the 
same  are  applicable,  the  law  requiring,  however,  that  all  placer-mining 
claims  located  after  May  10,  1872,  shall  conform  as  near  as  practicable 
with  the  United  States  system  of  public  land  surveys  and  the  rectangular 
subdivisions  of  such  surveys,  whether  the  locations  are  upon  surveyed  or 
unsurveyed  lands. 

Conformity  to  the  public  land  surveys  and  the  rectangular  subdivisions 
thereof  will  not  be  required  where  compliance  with  such  requirement 
would  necessitate  the  placing  of  the  lines  thereof  upon  other  prior  located 
claims  or  where  the  claim  is  surrounded  by  prior  locations. 

Where  a  placer  location  by  one  or  two  persons  can  be  entirely  included 
within  a  square  forty-acre  tract,  by  three  or  four  persons  within  two 
square  forty-acre  tracts  placed  end  to  end,  by  five  or  six  persons  within 
three  square  forty-acre  tracts,  and  by  seven  or  eight  persons  within  four 
square  forty-acre  tracts,  such  locations  will  be  regarded  as  within  the 
requirements  where  strict  conformity  is  impracticable. 

Whether  a  placer  location  conforms  reasonably  with  the  legal  sub- 
divisions of  the  public  surveys  is  a  question  of  fact  to  be  determined  in 
each  case,  and  no  location  will  be  passed  to  patent  without  satisfactory 
evidence  in  this  regard.  Claimants  should  bear  in  mind  that  it  is  the 
policy  of  the  government  to  have  all  entries  whether  of  agricultural  or 
mineral  lands  as  compact  and  regular  in  form  as  reasonably  practicable, 
and  that  it  will  not  permit  or  sanction  entries  or  locations  which  cut  the 
public  domain  into  long  narrow  strips  or  grossly  irregular  or  fantastically 
shaped  tracts.  (Snow  Flake  Fraction  Placer,  37  L.  D.  250.) 

REGULATIONS  UNDER  SALINE  ACT. 

31.  Only  One  Location  to  Same  Person, — Under  the  act 

approved  January  31,  1901,  extending  the  mining  laws  to  saline  lands,  the 
provisions  of  the  law  relating  to  placer-mining  claims  are  extended  to  all 
States  and  the  Territory  of  Alaska,  so  as  to  permit  the  location  'and 


LAND  OFFICE  RULES.  493 

purchase  thereunder  of  all  unoccupied  public  lands  containing  salt  springs, 
or  deposits  of  salt  in  any  form,  and  chiefly  valuable  therefor,  with  the 
proviso,  "That  the  same  person  shall  not  locate  or  enter  more  than  one 
claim  hereunder." 

32.  Rights  Assignable. — Rights  obtained  by  location  under 
the  placer-mining  laws  are  assignable,  and  the  assignee  may  make  the 
entry  in  his  own  name;  so,  under  this  act  a  person  holding  as  assignee 
may  make  entry  in  his  own  name :    Provided,  He  has  not  held  under  this 
act,  at  any  time,  either  as  locator  or  entryman,  any  other  lands;  his  right 
is  exhausted  by  having  held  under  this  act  any  particular  tract,  either  as 
locator  or  entryman,  either  as  an  individual  or  as  a  member  of  an  associa- 
tion.   It  follows,  therefore,  that  no  application  for  patent  or  entry,  made 
under  this  act,  shall  embrace  more  than  one  single  location. 

33.  Affidavit  to  Location  Certificate.— In  order  that  the 

conditions  imposed  by  the  proviso,  as  set  forth  in  the  above  paragraph, 
may  duly  appear,  the  application  for  patent  must  contain  or  be  accom- 
panied by  a  specific  statement  under  oath  by  each  person  whose  name 
appears  therein  that  he  never  has,  either  as  an  individual  or  as  a  member 
of  an  association,  located  or  entered  any  other  lands  under  the  provisions 
of  this  act.  The  application  for  patent  should  also  be  accompanied  by  a 
showing  under  oath,  fully  disclosing  the  qualifications  as  defined  by  the 
proviso,  of  the  applicants'  predecessors  in  interest.  (As  amended  June  4, 
1912.) 

PROCEDURE  TO  OBTAIN  PATENT  TO  MINERAL  LANDS. 

LODE  CLAIMS. 

34.  Official  Survey. — The  claimant  is  required,  in  the  first 
place,  to  have  a  correct  survey  of  his  claim  made  under  authority  of  the 
surveyor  general  of  the  State  or  Territory  in  which  the  claim  lies,  such 
survey  to  show  with  accuracy  the  exterior  surface  boundaries  of  the  claim, 
which  boundaries  are  required  to  be  distinctly  marked  by  monuments  on 
the  ground.     Four  plats  and  one  copy  of  the  original  field  notes  in  each 
ease  will  be  prepared  by  the  surveyor  general;  one  plat  and  the  original 
field  notes  to  be  retained  in  the  office  of  the  surveyor  general;  one  copy 
of  the  plat  to  be  given  the  claimant  for  posting  upon  the  claim;   one 
plat  and  a  copy  of  the  field  notes  to  be  given  the  claimant  for  filing  with 
the  proper  register,  to  be  finally  transmitted  by  that  officer,  with  other 
papers  in  the  case,  to  this  office,  and  one  plat  to  be  sent  by  the  surveyor 
general  to  the  register  of  the  proper  land  district,  to  be  retained  on  hia 
files  for  future  reference.     As  there  is  no  resident  surveyor  general  for 
the  State  of  Arkansas,  applications  for  the  survey  of  mineral  claims  in 
said  State  should  be  made  to  the  Commissioner  of  this  office,  who,  under 
the  law,  is  ex  offlcio  the  United  States  surveyor  general. 


494  LAND  OFFICE  RULES. 

The  surveyor  general  will  prepare  the  original  plat  on  Form  4-675. 
All  lines  clear  and  sharp  in  black.  All  letters  and  figures  clear  and  sharp 
in  black. 

The  original  plat,  so  prepared,  will  be  signed  and  dated  by  the  sur- 
veyor general  and  forwarded  to  the  General  Land  Office  flat  or  in  tube 
and  unmounted. 

As  to  plats  of  survey  of  mining  claims  outside  of  the  Territory  of 
Alaska,  the  Commissioner  will  have  three  photolithographic  copies  made 
upon  drawing  paper,  which  copies,  with  the  original  plat,  will  be  for- 
warded to  the  surveyor  general,  the  duplicate,  triplicate,  and  quadrupli- 
cate to  be  signed  by  him,  and  the  four  plats  to  be  filed  and  disposed  of  in 
the  same  manner  as  provided  in  paragraph  34  of  the  Mining  Regula- 
tions, viz.:  One  plat  and  the  original  field  notes  to  be  retained  in  the 
office  of  the  surveyor  general;  one  copy  of  the  plat  to  be  given  the  claim- 
ant for  posting  upon  the  claim ;  one  plat  and  a  copy  of  the  field  notes  to 
be  given  the  claimant  for  filing  with  the  proper  register,  to  be  finally 
transmitted  by  that  officer,  with  other  papers  in  the  case,  to  this1  office, 
and  one  plat  to  be  sent  by  the  surveyor  general  to  the  register  of  the 
proper  land  district,  to  be  retained  on  his  files  for  future  reference. 

As  to  plats  of  survey  of  mining  claims  in  the  Territory  of  Alaska,  the 
Commissioner  will  have  three  photolithographic  copies  made  upon  drawing 
paper,  two  copies  of  which,  with  the  original  plat,  will  be  forwarded  to 
the  surveyor  general,  the  duplicate  and  triplicate  to  be  signed  by  him, 
and  the  three  plats  to  be  filed  and  disposed  of  as  follows:  One  plat  and 
the  original  field  notes  to  be  retained  in  the  office  of  the  surveyor  gen- 
eral; one  plat  and  a  copy  of  the  field  notes  to  be  given  tlie  claimant,  for 
filing  with  the  proper  register,  to  be  finally  transmitted  by  that  officer, 
with  other  papers  in  the  case,  to  this  office,  and  one  plat  to  be  sent  by  the 
surveyor  general  to  the  register  of  the  proper  land  district  to  be  retained 
in  his  files  for  future  reference.  The  Commissioner  will  mail  one  photo- 
lithographic copy  of  the  plat,  made  upon  drawing  paper,  direct  to  the 
applicant  for  survey,  or  to  his  agent  or  attorney,  when  the  application  is 
made  by  agent  or  attorney,  at  his  record  address,  to  be  used  for  posting 
on  the  land. 

A  certain  number  of  photolithographic  copies  will  be  furnished  the 
surveyor  general  for  sale  at  a  cost  of  30  cents  each,  and  a  photolitho- 
graphic copy  printed  on  tracing  paper  .will  be  furnished  the  surveyor  gen- 
eral, from  which  blue  prints  may  be  made,  to  be  sold  at  cost.  (Instruc- 
tions, July  29,  1911,  as  amended  October  8,  1912.) 

35.  Same — None  Before  Record. — The  survey  and  plat  of 

mineral  claims  required  to  be  filed  in  the  proper  land  office  with  appli- 
cation for  patent  must  be  made  subsequent  to  the  recording  of  the  loca- 
tion of  the  claim  (if  the  laws  of  the  State  or  Territory  or  the  regula- 
tions of  the  mining  district  require  the  notice  of  location  to  be  recorded ) . 


LAND  OFFICE  RULES.  495 

and  wlien  the  original  location  is  made  by  survey  of  a  United  States 
mineral  surveyor  such  location  survey  can  not  be  substituted  for  that 
required  by  the  statute,  as  above  indicated. 

36.  Numbering  Surveys — Ties  to  Government  Corners. — 

The  surveyors  general  should  designate  all  surveyed  mineral  claims  by  a 
progressive  series  of  numbers,  beginning  with  survey  No.  37,  irrespective 
as  to  whether  they  are  situated  on  surveyed  or  unsurveyed  lands,  the 
claim  to  be  so  designated  at  date  of  issuing  the  order  therefor,  in  addi- 
tion to  the  local  designation  of  the  claim;  it  being  required  in  all  cases 
that  the  plat  and  field  notes  of  the  survey  of  a  claim  must,  in  addition 
to  the  reference  to  permanent  objects  in  the  neighborhood,  describe  the 
locus  of  the  claim  with  reference  to  the  lines  of  public  surveys  by  a  line 
connecting  a  corner  of  the  claim  with  the  nearest  public  corner  of  the 
United  States  surveys,  unless  such  claim  be  on  unsurveyed  lands  at  a  dis- 
tance of  more  than  two  miles  from  such  public  corner,  in  which  latter  case 
it  should  be  connected  with  a  United  States  mineral  monument.  Such 
connecting  line  must  not  be  more  than  two  miles  in  length,  and  should  be 
measured  on  the  ground  direct  between  the  points,  or  calculated  from 
actually  surveyed  traverse  lines  if  the  nature  of  the  country  should  not 
permit  direct  measurement.  If  a  regularly  established  survey  corner  is 
within  two  miles  of  a  claim  situated  on  unsurveyed  lands,  the  connection 
should  be  made  with  such  corner  in  preference  to  a  connection  with  a 
United  States  mineral  monument.  The  connecting  line  or  traverse  line 
must  be  surveyed  by  the  mineral  surveyor  at  the  time  of  his  making  the 
particular  survey  and  be  made  a  part  thereof. 

37.  (a)  Report  to  Land  Office. — Promptly  upon  the  ap- 
proval of  a  mineral  survey  the  surveyor  general  will  advise  both  this 
office  and  the  appropriate  local  land  office,  by  letter  (Form  4-286),  of  the 
date  of  approval,  number  of  the  survey,  name  and  area  of  the  claim,  name 
and  survey  number  of  each  approved  mineral  survey  with  which  actually 
in  conflict,  name  and  address  of  the  applicant  for  survey,  and  name  of  the 
mineral  surveyor  who  made  the  survey;   and  will  also  briefly  describe 
therein  the  locus  of  the  claim,  specifying  each  legal  subdivision  or  portion 
thereof,  when  upon  surveyed  lands,  covered  in  whole  or  in  part  by  the 
survey;  but  hereafter  no  segregation  of  any  such  claim  upon  the  official 
township-survey  records  will  be  made  until  mineral  entry  has  been  made 
and  approved  for  patent,  unless  otherwise  directed  by  this  office. 

Agricultural  Fractions. 

(b)  Upon  application  to  make  agricultural  entry  of  the  residue  of 
any  original  lot  or  legal  subdivision  of  forty  acres,  reduced  by  mining 
claims  for  which  patent  applications  have  been  filed  and  which  residue 
has  been  already  reallotted  in  accordance  therewith,  the  local  officers  will 


496  LAND  OFFICE  EULES. 

accept  and  approve  the  application  as  usual,  if  found  to  be  regnlr.r. 
When  such  an  application  is  filed  for  any  such  original  lot  or  subdivision. 
reduced  in  available  area  by  duly  asserted  mining  claims  but  not  yet 
relotted  accordingly,  the  local  officers  will  promptly  advise  this  office 
thereof;  and  will  also  report  and  identify  any  pending  application  for 
mineral  patent  affecting  such  subdivision  which  the  agricultural  appli- 
cant does  not  desire  to  contest.  The  surveyor  general  will  thereupon  be 
advised  by  this  office  of  such  mining  claims,  or  portions  thereof,  as  are 
proper  to  be  segregated,  and  directed  to  prepare  at  once,  upon  the  usual 
drawing-paper  township  blank,  diagram  of  amended  township  survey  of 
such  original  lot  or  legal  forty-acre  subdivision  so  made  fractional  by 
such  mineral  segregation,  designating  the  agricultural  portion  by  appro- 
priate lot  number,  beginning  with  No.  1  in  each  section  and  giving  the 
area  of  each  lot,  and  will  forthwith  transmit  one  approved  copy  to  the 
local  land  office  and  one  to  this  office.  In  the  meantime  the  local  officers 
will  accept  the  agricultural  application  (if  no  other  objection  appears), 
suspend  it  with  reservation  of  all  rights  of  the  applicant  if  continuously 
asserted  by  him,  and  upon  receipt  of  amended  township  diagram  will 
approve  the  application  (if  then  otherwise  satisfactory)  as  of  the  date  of 
filing,  corrected  to  describe  the  tract  as  designated  in  the  amended  survey. 
(c)  The  register  and  receiver  will  allow  no  agricultural  claim  for  any 
portion  of  an  original  lot  or  legal  forty-acre  subdivision,  where  the 
reduced  area  is  made  to  appear  by  reason  of  approved  surveys  of  mining 
claims  and  for  which  applications  for  patent  have  not  been  filed,  until 
there  is  submitted  by  such  agricultural  applicant  a  satisfactory  showing 
that  such  surveyed  claims  are  in  fact  mineral  in  character;  and  applica- 
tions to  have  lands  asserted  to  be  mineral,  or  mining  locations,  segre- 
gated by  survey,  with  the  view  to  agricultural  appropriation  of  the 
remainder,  will  be  made  to  the  register  and  receiver  for  submission  to 
the  Commissioner  of  the  General  Land  Office,  for  his  consideration  and 
direction,  and  must  be  supported  by  the  affidavit  of  the  party  in  interest, 
duly  corroborated  by  two  or  more  disinterested  persons,  or  by  such  other 
or  further  evidence  as  may  be  required  in  any  case,  that  the  lands  sought 
to  be  segregated  as  mineral  are  in  fact  mineral  in  character;  otherwise, 
in  the  absence  of  satisfactory  showing  in  any  such  case,  such  original  lot 
or  legal  subdivision  will  be  subject  to  agricultural  appropriation  only. 
When  any  such  showing  shall  be  found  to  be  satisfactory  and  the  neces- 
sary survey  is  had,  amended  township  diagram  will  be  required  aiid  made 
as  prescribed  in  the  preceding  section. 

38.  The  following  particulars  should  be  observed  in  the 

survey  of  every  mining  claim: 

(1)  The  exterior  boundaries  of  the  claim,  the  number  of  feet  claimed 
along  the  vein,  and,  as  nearly  as  can  be  ascertained,  the  direction  of  the 
vein,  and  the  number  of  feet  claimed  on  the  vein  in  each  direction  from 


LAND  OFFICE  RULES.  497 

the  point  of  discovery  or  other  well-defined  place  on  the  claim  should  be 
represented  on  the  plat  of  survey  and  in  the  field  notes. 

(2)  The  intersection  of  the  lines  of  the  survey  with  the  lines  of  con- 
flicting prior  surveys  should  be  noted  in  the  field  notes  and  represented 
upon  the  plat. 

(3)  Conflicts  with  unsurveyed  claims,  where  the  applicant  for  survey 
does  not  claim  the  area  in  conflict,  should  be  shown  by  actual  survey. 

(4)  The  total  area  of  the  claim  embraced  by  the  exterior  boundaries 
should  be  stated,  and  also  the  area  in  conflict  with  each  intersecting  sur- 
Vey,  substantially  as  follows: 

Acres. 

Total  area  of  claim 10.50 

Area  in  conflict  with  survey  No.  302 1.56 

Area  in  conflict  with  survey  No.  948 2.33 

Area  in  conflict  with  Mountain  Maid  lode  mining  claim,  unsurveyed     1.48 

It  does  not  follow  that  because  mining  surveys  are  required  to  exhibit 
all  conflicts  with  prior  surveys  the  areas  of  conflict  are  to  be  excluded. 
The  field  notes  and  plat  are  made  a  part  of  the  application  for  patent, 
and  care  should  be  taken  that  the  description  does  not  inadvertently 
exclude  portions  intended  to  be  retained.  The  application  for  pa'tent 
should  state  the  portions  to  be  excluded  in  express  terms. 

39.  Posting  Plat. — The  claimant  is  then  required  to  post 
a  copy  of  the  plat  of  such  survey  in  a  conspicuous  place  upon  the  claim, 
together  with  notice  of  his  intention  to  apply  for  a  patent  therefor,  which 
notice  will  give  the  date  of  posting,  the  name  of  the  claimant,  the  name 
of  the  claim,  the  number  of  the  survey,  the  mining  district  and  county, 
and  the  names  of  adjoining  and  conflicting  claims  as  shown  by  the  plat 
survey.  Too  much  care  can  not  be  exercised  in  the  preparation  of  this 
notice,  inasmuch  as  the  data  therein  are  to  be  repeated  in  the  other 
notices  required  by  the  statute,  and  upon  the  accuracy  and  completeness 
of  these  notices  will  depend,  in  a  great  measure,  the  regularity  and 
validity  of  the  proceedings  for  patent. 

Same,  in  Alaska. 

(a)  The  notices  of  applications  for  patent  for  lands  in  Alaska  are,  in 
many  cases,  not  sufficient  to  apprise  adverse  claimants  and  the  public 
generally  of  the  location  of  the  land  applied  for,  and  therefore  do  not 
serve  the  purpose  for  which  such  notices  are  required;  nor  can  the  loca- 
tion of  the  land  be  ascertained  from  the  application  papers  themselves 
and  without  obtaining  information  from  other  sources.  This  is  due  prin- 
cipally to  the  large  area  of  unsurveyed  land  in  the  district  and  remote- 
ness from  centers  of  population  of  much  of  the  country.  In  order  to 
give  a  more  definite  description  of  the  land  applied  for  the  following 
special  instructions  with  reference  to  the  Territory  of  Alaska  are  issued. 


498  LAND  OFFICE  RULES. 

which  are  supplemental  to  but  do  not  change  or  modify  existing  regula- 
tions: 

Field  Notes  and  Ties  in  Alaska. 

(b)  The  field  notes  of  survey  of  all  claims  within  the  Territory  of 
Alaska,  where  the  survey  is  not  tied  to  a  corner  of  the  public  survey,  shall 
contain  a  description  of  the  location  or  mineral  monument  to  which  the 
survey  is  tied,  by  giving  its  latitude  and  longitude,  and  its  position  with 
reference  to  rivers,  creeks,  mountains  or  mountain  peaks,  towns,  or  other 
prominent  topographical  points  or  natural  objects  or  monuments,  giving 
the  distances  and  directions  as  nearly  accurate  as  possible,  especially  with 
reference  to  any  well-known  trail  to  a  town  or  mining  camp,  or  to  a  river 
or  mountain  appearing  on  the  map   of  Alaska,  which  description  shall 
appear  in  the  field  notes  regardless  of  whether  or  not  tho  survey  be  tied 
to  an  existing  monument,  or  to  a  monument  established  by  the  surveyor 
when  making  the  survey  in  accordance  with  existing  regulations  with  ref- 
erence to  the  establishment  of  such  monuments.     The  description  of  such 
monument  shall  appear  in  a  paragraph  separate  from  the  description  of 
the  courses  and  distances  of  the  survey. 

(c)  All  notices  of  applications  for  patent  for  lands  in  the  Territory 
of  Alaska,  where  the  survey  on  which  the  application  is  based  is  not  tied 
to  a  corner  of  the  public  survey,  shall,  in  addition  to   the   description 
required  to  be  given  by  existing  regulations,  describe  the  monument  to 
which  the  claim  is  tied  by  giving  its  latitude  and  longitude  and  a  refer- 
ence by  approximate  course  and  distance  to  a  town,  mining  camp,  river, 
creek,  mountain,  mountain  peak,   or  other  natural  object  appearing  on 
the   map  of   Alaska,  and  any  other  facts  shown   by  the  field  notes  of 
survey  which  shall  aid  in  determining  the  exact  location  of  such  claim 
without  an  examination  of  the  record  or  a  reference  to  other  sources. 
The  registers  and  receivers  will  exercise  discretion  in  the  matter  of  such 
descriptions  in  the  published  notices,  bearing  in  mind  the  object  to  be 
attained,  of  so  describing  the  land  embraced  in  the  claim  as  to  enable 
its  location  to  be  ascertained  from  the  notice  of  application.     (Instruc- 
tions, December  23,  1913.) 

40.  Proof  of  Posting. — After  posting  the  said  plat  and 

notice  upon  the  premises,  the  claimant  will  file  with  the  proper  register 
and  receiver  a  copy  of  such  plat  and  the  field  notes  of  survey  of  the 
claim,  accompanied  by  the  affidavit  of  at  least  two  credible  witnesses  that 
such  plat  and  notice  are  posted  conspicuously  upon  the  claim,  giving  the 
date  and  place  of  such  posting;  a  copy  of  the  notice  so  posted  to  be 
attached  to  and  form  a  part  of  said  affidavit. 

41.  Application    for    Patent. — Accompanying    the    field 

notes  so  filed  must  be  the  sworn  statement  of  the  claimant  that  ho  lias 
the  possessory  right  to  the  premises  therein  described,  in  virtue  of  a  com- 


LAND  OFFICE  RULES.  499 

pl'ance  by  himself  (and  by  his  grantors,  if  he  claims  by  purchase)  with 
the  mining  rules,  regulations,  and  customs  of  the  mining  district,  State, 
or  Territory  in  which  the  claim  lies,  and  with  the  mining  laws  of  Con- 
gress ;  such  sworn  statement  to  narrate  briefly,  but  as  clearly  as  possible, 
the  facts  constituting  such  compliance,  the  origin  of  his  possession  and 
the  basis  of  his  claim  to  a  patent.  The  application  should  contain  a  full 
description  of  the  kind  and  character  of  the  vein  or  lode  and  should  state 
whether  ore  has  been  extracted  therefrom,  and,  if  so,  in  what  amount 
and  of  what  value.  It  should  also  show  the  precise  place  within  the 
limits  of  each  of  the  locations  embraced  in  the  application  where  the  vein 
or  lode  has  been  exposed  or  discovered  and  the  width  thereof.  The 
showing  in  these  regards  should  contain  sufficient  data  to  enable  repre- 
sentatives of  the  Government  to  confirm  the  same  by  examination  in  the 
field  and  also  enable  the  land  department  to  determine  whether  a  valuable 
deposit  of  mineral  actually  exists  within  the  limits  of  each  of  the  loca- 
tions embraced  in  the  application. 

Applications  in  Alaska. 

(a)  The  register  and  receiver  will  require  each  person  applying  to 
enter  or  in  any  manner  acquire  title  to  any  of  the  lands  in  Alaska,  under 
any  law  of  the  United  States,  to  file  a  corroborated  affidavit  to  the  effect 
that  none  of  the  lands  covered  by  his  application  are  embraced  in  any 
pending  application  for  an  allotment  under  the  act  of  May  17,  1906  (34 
Stat.  197),  or  in  any  pending  allotment;  that  no  part  of  said  land  waa 
at  the  date  of  the  location  of  the  land  claimed  under  the  mining  law 
occupied  or  claimed  by  any  Indian,  whose  occupancy  or  claim  existed  on 
the  date  of  the  acts  granting  to  natives  of  Alaska  the  right  to  hold  land 
used,  occupied,  or  claimed  by  them  (Acts  of  Congress  of  May  17,  1884, 
23  Stat.  24,  and  June  6,  1900,  31  Stat.  330),  and  had  been  continued 
down  to  and  including  date  of  location;  that  such  land  is  in  the  bona  fide 
legal  possession  of  the  applicant;  and  that  no  part  of  such  land  is  in  the 
bona  fide  legal  possession  of  or  is  occupied  by  any  Indian  or  native.  (37 
L.  D.  616,  and  43  L.  D.  88,  272.) 

42.  Abstract  of  Title. — This  sworn  statement  must  be  sup- 
ported by  a  copy  of  each  location  notice,  certified  by  the  legal  custodian 
of  the  record  thereof,  and  also  by  an  abstract  of  title  of  each  claim  certi- 
fied by  the  legal  custodian  of  the  records  of  transfers,  or  by  a  duly 
authorized'abstracter  of  titles.  The  certificate  must  state  that  no  convey- 
ances affecting,  or  purporting  to  affect,  the  title  to  the  claim  or  claims 
appear  of  record  other  than  those  set  forth. 

Outside  of  the  Territory  of  Alaska,  the  application  for  patent  will  be 
received  and  filed  if  the  abstract  is  brought  down  to  a  day  reasonably 
near  the  date  of  the  presentation  of  the  application  and  shows  full  title 
in  the  applicant,  who  must  as  soon  as  practicable  thereafter  file  a  supple- 


500  LAND  OFFICE  KULES. 

mental  abstract  brought  down  so  as  to  include  the  date  of  the  filing  of  the 
application.  Publication  will  not  be  ordered  until  the  showing  as  to  title 
is  thus  completed  and  the  local  land  officers  are  satisfied  that  full  title 
was  in  the  applicant  on  the  day  of  the  filing  of  the  application. 

Alaska  Abstracts  of  Title. 

In  the  Territory  of  Alaska  the  application  for  patent  will  be  received 
and  filed  and  the  order  for  publication  issued  if  the  abstract  showing  full 
title  in  the  applicant  is  brought  down  to  a  day  reasonably  near  the  date 
of  the  presentation  of  the  application.  A  supplemental  abstract  of  title 
brought  down  so  as  to  include  the  date  of  the  filing  of  the  application 
must  be  furnished  prior  to  the  expiration  of  the  60-day  period  of  publica- 
tion. 

No  certificate  from  an  abstracter  or  abstract  company  will  be  accepted 
until  approval  by  the  Commissioner  of  the  General  Land  Office  of  a 
favorable  report  of  the  chief  of  field  division,  or  United  States  district 
attorney  whose  division  or  district  embraces  the  lands  in  question,  as  to 
the  reliability  and  responsibility  of  such  abstracter  or  company.  (As 
amended  January  9,  1912.) 

43.  Lost  Records. — In  the  event  of  the  mining  records  in 
any  case  having  been  destroyed  by  fire  or  otherwise  lost,  affidavit  of  the 
fact  should  be  made,  and  secondary  evidence  of  possessory  title  will  be 
received,  which  may  consist  of  the  affidavit  of  the  claimant,  supported  by 
those  of  any  other  parties  cognizant  of  the  facts  relative  to  his  location, 
occupancy,  possession,  improvements,  etc.;  and  in  such  case  of  lost  rec- 
ords, any  deeds,  certificates  of  location  or  purchase,  or  other  evidence 
which  may  be  in  the  claimant's  possession  and  tend  to  establish  his  claim, 
should  be  filed. 

44.  Two  Applications  for  Same  Land — Railroad  Lands. — 

Before  approving  for  publication  any  notice  of  an  application  for  min- 
eral patent,  local  officers  will  be  particular  to  see  that  it  includes  no 
land  which  is  embraced  in  a  prior  or  pending  application  for  patent  or 
entry,  or  for  any  land  embraced  in  a  railroad  selection,  or  for  which 
publication  is  pending  or  has  been  made  by  any  other  claimants,  and  if, 
in  their  opinion,  after  investigation,  it  should  appear  that  notice  of  a 
mineral  application  should  not,  for  this  or  other  reasons,  be  approved  for 
publication,  they  should  formally  reject  the  same,  giving  the  reasons 
therefor,  and  allow  the  applicant  30  days  for  appeal  to  this  office  under 
the  Rules  of  Practice.  (As  amended  August  9,  1911.) 

Local  officers  will  give  prompt  and  appropriate  notice  to  the  railroad 
grantee  of  the  filing  of  every  application  for  mineral  patent  which 
embraces  any  portion  of  an  odd-numbered  section  of  surveyed  lands 
within  the  primary  limits  of  a  railroad  land  grant,  and  of  every  such 


LAND  OFFICE  RULES.  501 

application  embracing  any  portion  of  unsurveyed  lands  within  such  limits 
(except  as  to  any  such  application  which  embraces  a  portion  or  portions 
of  those  ascertained  or  prospective  odd-numbered  sections  only,  within 
the  limits  of  the  grant  in  Montana  and  Idaho  to  the  Northern  Pacific 
Eailroad  Company,  which  have  been  classified  as  mineral  under  the  Act 
of  February  26,  1895,  without  protest  by  the  company  within  the  time 
limited  by  the  statute  or  the  mineral  classification  whereof  has  been 
approved). 

Should  the  railroad  grantee  file  protest  and  apply  for  a  hearing  to 
determine  the  character  of  the  land  involved  in  any  such  application  for 
mineral  patent,  proceedings  thereunder  will  be  had  in  the  usual  manner. 

Any  application  for  mineral  patent,  however,  which  embraces  lands 
previously  listed  or  selected  by  a  railroad  company  will  be  disposed  of 
as  provided  by  the  first  section  of  this  paragraph,  and  the  applicant 
afforded  opportunity  to  protest  and  apply  for  a  hearing  or  to  appeal. 

Notice  should  be  given  to  the  duly  authorized  representative  of  the 
railroad  grantee,  in  accordance  with  the  Eules  of  Practice.  When  the 
claims  applied  for  are  upon  unsurveyed  land,  the  burden  of  proving  that 
they  are  situate  within  prospective  odd-numbered  sections  will  rest  upon 
the  railroad. 

Evidence  of  service  of  notice  should  be  filed  with  the  record  in  each 
ease. 

45.  Publication  —  Publisher's     Agreement.  —  Upon      the 

receipt  of  these  papers,  if  no  reason  appears  for  rejecting  the  application, 
the  register  will,  at  the  expense  of  the  claimant  (who  must-  furnish  the 
agreement  of  the  publisher  to  hold  applicant  for  patent  alone  responsible 
for  charges  of  publication),  publish  a  notice  of  such  application  for  the 
period  of  sixty  days  in  a  newspaper  published  nearest  to  the  claim,  and 
will  post  a  copy  of  such  notice  in  his  office  for  the  same  period.  When 
the  notice  is  published  in  a  weekly  newspaper,  nine  consecutive  insertions 
are  necessary;  w7hen  in  a  daily  newspaper,  the  notice  must  appear  in  each 
issue  for  sixty-one  consecutive  issues.  In  both  cases  the  first  day  of  issue 
must  be  excluded  in  estimating  the  period  of  sixty  days. 

46.  Data  in  Notices. — The  notices  so  published  and  posted 

must  embrace  all  the  data  given  in  the  notice  posted  upon  the  claim.  In 
addition  to  such  data  the  published  notice  must  further  indicate  the 
locus  of  the  claim  by  giving  the  connecting  line,  as  shown  by  the  field 
notes  and  plat,  between  a  corner  of  the  claim  and  a  United  States  min- 
eral monument  or  a  corner  of  the  public  survey,  and  thence  the  boundaries 
of  the  claim  by  courses  and  distances.  (See  also  par.  39  (a),  (6),  (c).) 

47.  Register  Designates   Newspaper. — The   register  shall 

publish  the  notice  of  application  for  patent  in  a  paper  of  established 


602  LAND  OFFICE  RULES. 

character  and  general  circulation,  to  be  by  him  designated  as  being  the 
newspaper  published  nearest  the  land. 

48.  Surveyor    General's    Certificate    of    $500    Improve- 
ments.— The  claimant  at  the  time  of  filing  the  application 
for  patent,  or  at  any  time  within  the  sixty  days  of  publication,  is  required 
to  file  with  the  register  a  certificate  of  the  surveyor  general  that  not  less 
than  five  hundred  dollars'  worth  of  labor  has  been  expended  or  improve- 
ments made,  by  the  applicant  or  his  grantors,  upon  each  location  embraced 
in  the  application,  or  if  the  application  embraces  several  contiguous  loca- 
tions held  in  common,  that  an  amount  equal  to  five  hundred  dollars  for 
each  location  has  been  so   expended  upon,  and  for  the  benefit  of,   the 
entire  group;  that  the  plat  filed  by  the  claimant  is  correct;  that  the  field 
notes  of  the  survey,  as  filed,  furnish  such  an  accurate  description  of  the 
claim  as  will,  if  incorporated  in  a  patent,  serve  to  identify  the  premises 
fully,  and  that  such  reference  is  made  therein  to  natural  objects  or  per- 
manent monuments  as  will  perpetuate  and  fix  the  locus  thereof:    Pro- 
vided, That  as  to  all  applications  for  patents  made  and  passed  to  entry 
before  July  1,  1898,  or  which  are  by  protests  or  adverse  claims  prevented 
from   being   passed   to   entry   before   that   time,   where   the    application 
embraces  several  locations  held  in  common,  proof  of  an  expenditure  of 
five  hundred  dollars  upon  the  group  will  be  sufficient,  and  an  expendi- 
ture of  that  amount  need  not  be  shown  to  have  been  made  upon,  or  for 
the  benefit  of,  each  location  embraced  in  the  application. 

49.  Same — Source  of  Information. — The  surveyor  general 

may  derive  his  information  upon  which  to  base  his  certificate  as  to  the 
value  of  labor  expended  or  improvements  made  from  the  mineral  sur- 
veyor who  actually  makes  survey  and  examination  of  the  premises,  in  so 
far  as  such  matters  rest  in  the  personal  knowledge  of  the  mineral  sur- 
veyor. The  mineral  surveyor  should  specify  with  particularity  and  full 
detail  the  character  and  extent  of  such  improvements.  As  to  when  and 
by  whom  the  improvements  were  made  and  other  essential  matters  not 
within  such  mineral  surveyor's  personal  knowledge,  recourse  may  be  had 
by  the  surveyor  general  to  corroborated  affidavits  by  persons  possessing 
such  personal  knowledge,  or  the  best  evidence  in  this  behalf  otherwise 
obtainable.  This  showing  should  accompany  the  report  of  the  mineral 
surveyor  as  to  improvements.  (As  amended  April  9,  1915.) 

•  50.  Certificate  on  Plat  and  Field  Notes. — It  will  be  con- 
venient to  have  this  certificate  indorsed  by  the  surveyor  general,  both 
upon  the  plat  and  field  notes  of  survey  filed  by  the  claimant  as  afore- 
said. 

51.  Proof  of  Publication  and  of  Plat  Remaining1  Posted.— 

After  the  sixty  days'  period  of  newspaper  publication  has  expired,  the 


LAND  OFFICE  RULES.  603 

claimant  will  furnish  from  the  office  of  publication  a  sworn  statement 
that  the  notice  was  published  for  the  statutory  period,  giving  the  first 
and  last  day  of  such  publication,  and  his  own  affidavit  showing  that  the 
plat  and  notice  aforesaid  remained  conspicuously  posted  upon  the  claim 
sought  to  be  patented  during  said  sixty  days'  publication,  giving  the 
dates. 

52.  Entry  Price — Proof  of  Sums  Paid. — Upon  the  filing  of 

this  affidavit  the  register  will,  if  no  adverse  claim  was  filed  in  his  office 
during  the  period  of  publication,  and  no  other  objection  appears,  permit 
the  claimant  to  pay  for  the  land  to  which  he  is  entitled  at  the  rate  of 
five  dollars  for  each  acre  and  five  dollars  for  each  fractional  part  of  an 
acre,  except  as  otherwise  provided  by  law,  the  receiver  issuing  the  usual 
receipt  therefor.  The  claimant  will  also  make  a  sworn  statement  of  all 
charges  and  fees  paid  by  him  for  publication  and  surveys,  together  with 
all  fees  and  money  paid  the  register  and  receiver  of  the  land  office,  after 
which  the  complete  record  will  be  forwarded  to  the  Commissioner  of  the 
General  Land  Office  and  a  patent  issued  thereon  if  found  regular. 

53.  Protest. — At  any  time  prior  to  the  issuance  of  patent 
protest  may  be  filed  against  the  patenting  of  the  claim  as  applied  for, 
upon  any  ground  tending  to  show  that  the  applicant  has  failed  to  comply 
with  the  law  in  any  matter  essential  to  a  valid  entry  under  the  patent 
proceedings.     Such  protest  can  not,  however,  be  made  the  means  of  pre- 
serving a  surface  conflict  lost  by  failure  to  adverse  or  lost  by  the  judg- 
ment of  the  Court  in  an  adverse  suit.    One  holding  a  present  joint  interest 
in   a    mineral   location   included   in   an   application    for   patent    who    is 
excluded  from  the  application,  so  that  his  interest  would  not  be  pro- 
tected by  the  issue  of  patent  thereon,  may  protest  against/  the  issuance 
of  a  patent  as  applied  for,  setting  forth  in  such  protest  the  nature  and 
extent  of  his  interest  in  such  location,  and  such  a  protestant  will  be 
deemed  a  party  in  interest  entitled  to  appeal.     This  results  from  the 
holding  that  a  co-owner  excluded  from  an  application  for  patent  does 
not  have  an  "adverse"  claim  within  the  meaning  of  sections  2325  and 
2326  of  the  Revised  Statutes.     (See  Turner  v.  Sawyer,  150  U.  S.  578-586, 
14  Sup.  Ct.  192,  37  L.  Ed.  1189,  17  M.  B.  683.) 

54.  Application  by  Trustee. — Any  party  applying  for  pat- 
ent as  trustee  must  disclose  fully  the  nature  of  the  trust  and  the  name  of 
the  cestui  que  trust;  and  such  trustee,  as  well  as  the  beneficiaries,  must 
furnish  satisfactory  proof  of  citizenship;  and  the  names  of  beneficiaries, 
as  well  as  that  of  the  trustee,  must  be  inserted  in  the  final  certificate  of 
entry. 

55.  Annual  Labor  Solely  a  Question   Between   Adverse 
Claimants. — The  annual  expenditure  of  one  hundred  dollars 
in  labor  or  improvements  on  a  mining  claim,  required  by  section  2324  of 


504  LAND  OFFICE  RULES. 

the  Revised  Statutes,  is,  with  the  exception  of  certain  phosphate  placer 
locations,  validated  by  the  Act  of  January  11,  1915  (see  regulations 
thereunder,  dated  March  31,  1915,  in  Addenda,  p.  92),  solely  a  matter 
between  rival  or  adverse  claimants  to  the  same  mineral  land,  and  goes 
only  to  the  right  of  possession,  the  determination  of  which  is  com- 
mitted exclusively  to  the  courts. 

56.  Failure    to    Prosecute    Application    Diligently. — The 

failure  of  an  applicant  for  patent  to  a  mining  claim  to  prosecute  his 
application  to  completion,  by  filing  the  necessary  proofs  and  making  pay- 
•ment  for  the  land,  within  a  reasonable  time  after  the  expiration  of  the 
period  of  publication  of  notice  of  the  application,  or  after  the  termina- 
tion of  adverse  proceedings  in  the  courts,  constitutes  a  waiver  by  the 
applicant  of  all  rights  obtained  by  the  earlier  proceedings  upon  the  appli- 
cation. 

57.  Same — Prosecution   Delayed  by   Adverse. — The   pro- 
ceedings necessary  to  the  completion  of  an  applicatidh  for  patent  to  a 
mining  claim,  against  which  an  adverse  claim  or  protest  has  been  filed, 
if  taken  by  the  applicant  at  the  first  opportunity  afforded  therefor  under 
the  law  and  departmental  practice,  will  be  as  effective  as  if  taken  at  the 
date  when,  but  for  the  adverse  claim  or  protest,  the  proceedings  on  the 
application  could  have  been  completed. 

PLACER   CLAIMS.* 

58.  On  Surveyed  Lands. — The  proceedings  to  obtain  pat- 
ents for  placer  claims,  including  all  forms  of  mineral  deposits  excepting 
veins  of  quartz  or  other  rock  in  place,  are  similar  to  the  proceedings  pre- 
scribed for  obtaining  patents  for  vein  or  lode  claims;  but  where  a  placer 
claim  shall  be  upon  surveyed  lands,  and  conforms  to  legal  subdivisions, 
no  further  survey  or  plat  will  be  required.   Where  placer  claims  can  not 
be  conformed  to  legal  subdivisions,  survey  and  plat  shall  be  made  as  on 
unsurveyed  lands. 

59.  Price. — The    proceedings   for    obtaining    patents    for 

veins  or  lodes  having  already  been  fully  given,  it  will  not  be  necessary  to 
repeat  them  here,  it  being  thought  that  careful  attention  thereto  by 
applicants  and  the  local  officers  will  enable  them  to  act  understandingly 
in  the  matter,  and  make  such  slight  modifications  in  the  notice,  or  other- 
wise, as  may  be  necessary  in  view  of  the  different  nature  of  the  two 
classes  of  claims;  the  price  of  placer  claims  being  fixed,  however,  at  two 
dollars  and  fifty  cents  per  acre  or  fractional  part  of  an  acre. 

60.  Statements    in    Application    for    Patent. — In    placer 

applications,  in  addition  to  the  recitals  necessary  in  and  to  both  vein  or 
•See,  also,  Regulations  19-30. 


LAND  OFFICE  RULES.  505 

lode  and  placer  applications,  the  placer  application  should  contain,  in 
detail,  such  data  as  will  support  the  claim  that  the  land  applied  for  is 
placer  ground  containing  valuable  mineral  deposits  not  in  vein  or  lode 
formation  and  that  title  is  sought  not  to  control  water  courses  or  to 
obtain  valuable  timber  but  in  good  faith  because  of  the  mineral  therein. 
This  statement,  of  course,  must  depend  upon  the  character  of  the  deposit 
and  the  natural  features  of  the  ground,  but  the  following  details  should 
be  covered  as  fully  as  possible:  If  the  claim  be  for  a  deposit  of  placer 
gold,  there  must  be  stated  the  yield  per  pan,  or  cubic  yard,  as  shown  by 
prospecting  and  development  work,  distance  to  bedrock,  formation  and 
extent  of  the  deposit,  and  all  other  facts  upon  which  he  bases  his  allega- 
tion that  the  claim  is  valuable  for  its  deposits  of  placer  gold.  If  it  be  a 
building  stone  or  other  deposit  than  gold  claimed  under  the  placer  laws, 
he  must  describe  fully  the  kind,  nature,  and  extent  of  the  deposit,  stating 
the  reasons  why  same  is  by  him  regarded  as  a  valuable  mineral  claim. 
He  will  also  be  required  to  describe  fully  the  natural  features  of  the 
claim ;  streams,  if  any,  must  be  fully  described  as  to  their  course,  amount 
of  water  carried,  fall  within  the  claim;  and  he  must  state  kind  and 
amount  of  timber  and  other  vegetation  thereon  and  adaptability  to  min- 
ing or  other  uses. 

If  the  claim  be  all  placer  ground,  that  fact  must  be  stated  in  the 
application  and  corroborated  by  accompanying  proofs;  if  of  mixed  plac- 
ers and  lodes,  it  should  be  so  set  out,  with  a  description  of  all  known 
lodes  situated  within  the  boundaries  of  the  claim.  A  specific  declaration, 
such  as  is  required  by  section  2333,  Revised  Statutes,  must  be  furnished 
as  to  each  lode  intended  to  be  claimed.  All  other  known  lodes  are,  by 
the  silence  of  the  applicant,  excluded  by  law  from  all  claim  by  him,  of 
whatsoever  nature,  possessory  or  otherwise. 

While  these  data  are  required  as  a  part  of  the  mineral  surveyor's 
report  under  paragraph  167,  in  case  of  placers  taken  by  special  survey,  it 
is  proper  that  the  application  for  patent  incorporate  these  facts  under 
the  oath  of  the  claimant. 

Inasmuch  as  in  case  of  claims  taken  by  legal  subdivisions,  no  report  by 
a  mineral  surveyor  is  required,  the  claimant,  in  his  application  in  addi- 
tion to  the  data  above  required,  should  describe  in  detail  the  shafts,  cuts, 
tunnels,  or  other  workings  claimed  as  improvements,  giving  their  dimen- 
sions, value,  and  the  course  and  distance  thereof  to  the  nearest  corner  of 
the  public  surveys. 

As  prescribed  by  paragraph  25,  this  statement  as  to  the  description 
and  value  of  the  improvements  must  be  corroborated  by  the  affidavits  of 
two  disinterested  witnesses. 

Applications  awaiting  entry,  whether  published  or  not,  must  he  made 
to  conform  to  these  regulations,  with  respect  to  proof  as  to  the  character 
of  the  land.  Entries  already  made  will  be  suspended  for  such  additional 
proofs  as  may  be  deemed  necessary  in  each  case. 


506  LAND  OFFICE  RULES. 

Local  land  officers  are  instructed  that  if  the  proofs  submitted  in 
placer  applications  under  this  paragraph  are  not  satisfactory  as  showing 
the  land  as  a  whole  to  be  placer  in  character,  or  if  the  claims  impinge 
upon  or  embrace  water  courses  or  bodies  of  water,  and  thus  raise  a 
doubt  as  to  the  bona  -fides  of  the  location  and  application,  or  the  char- 
acter and  extent  of  the  deposit  claimed  thereunder,  to  call  for  further 
evidence,  or  if  deemed  necessary,  request  the  specific  attention  of  the 
Chief  of  Field  Service  thereto  in  connection  with  the  usual  notification  to 
him  under  the  circular  instructions  of  April  24,  1907,*  and  suspend 
further  action  on  the  application  until  a  report  thereon  is  received  from 
the  field  officer. 

Placer  Claims  in  Alaska. — Attention  is  directed  to  the 
Act  of  Congress  approved  August  1,  1912  (37  Stat.  L.  242),  entitled 
' '  An  act  to  modify  and  amend  the  mining  laws  in  their  application  to 
the  Territory  of  Alaska,  and  for  other  purposes."  In  administering  this 
act  the  foregoing  regulations  should  be  followed  in  so  far  as  they  are 
applicable,  and  these  additional  instructions  of  October  29,  1912,  are 
prescribed : 

It  is  important  to  note  that  ifyis  act  applies  exclusively  to  placer 
mining  claims  located  in  Alaska  on  or  after  August  1,  1912.  It  does  not 
in  any  manner  relate  to  lode  mining  claims,  or  to  placer  mining  claims 
located  prior  to  said  date.  The  terms  of  the  act  lay  strict  limitations 
and  conditions  with  respect  to  placer  locations  made  upon  or  after  said 
date. 

Section  1  of  the  act  provides  that  no  association  placer  claim  shall  be 
located  after  August  1,  1912,  in  excess  of  40  acres.  This  limitation  is 
positive  whatever  may  be  the  number  of  persons  associated  together  or 
whatever  the  local  district  rules  or  regulations  may  permit. 

Said  section  further  provides  that  on  every  placer  mining  claim 
located  in  Alaska  after  the  passage  of  the  act,  and  until  patent  therefor 
has  been  issued,  not  less  than  $100  worth  of  labor  must  be  performed  or 
improvements  made  during  each  year,  including  the  year  of  location,  for 
each  and  every  20  acres  or  excess  fraction  thereof  included  in  the  claim. 
This  means  that  the  first  annual  expenditure  on  such  a  placer  mining 
location  must  be  accomplished  for  and  during  the  calendar  year  in  which 
the  claim  is  located,  instead  of  during  the  calendar  year  succeeding  that 
in  which  the  location  is  made.  Moreover,  the  amount  of  annual  expendi- 
ture is  dependent  upon  the  size  of  the  claim,  it  being  required  that  at 
least  $100  must  be  expended  for  each  20  acres,  or  excess  fraction  thereof, 
embraced  in  the  location. 


•Rule  7  of  this  circular  amended  October  30,  1913.     (See  42  L.  D. 
474.) 


LAND  OFFICE  RULES.  50V 

By  section  2  it  is  provided  that  no  person,  as  attorney  or  agent  for 
another,  may  locate  any  placer  mining  claim  unless  duly  authorized  by  a 
power  of  attorney  properly  acknowledged  and  recorded  in  some  recorder's 
office  within  the  judicial  division  where  the  location  is  made.  Further- 
more, an  authorized  agent  or  attorney  can  act  in  making  locations  of 
placer  mining  claims  for  only  two  individual  principals  or  one  associate 
principal  during  any  calendar  month  and  during  that  period  may  not 
lawfully  locate  more  than  two  claims  for  any  one  principal  either  indi- 
vidual or  association.  No  placer  claim  can  lawfully  be  located  except  in 
compliance  with  and  under  the  limitations  of  the  act. 

In  order  that  the  land  department  may  be  fully  advised  in  the  prem- 
ises, the  following  requirements  must  be  met  with  regard  to  applications 
for  placer  mining  claims  located  in  Alaska  on  or  after  August  1,  1912 : 

(a)  Where  location  is  made  by  agent  or  attorney  the  power  of  attor- 
ney must  be  in  writing  and  must  be  executed  and  acknowledged  in 
accordance  with  the  laws  of  the  Territory  of  Alaska  or  of  the  State,  Ter- 
ritory, or  District  in  which  it  shall  be  executed.  It  must  be  recorded  in 
the  proper  recorder's  office,  as  prescribed  by  the  act.  The  application 
for  patent  must  be  accompanied  by  a  certified  copy  of  such  power  of 
attorney  which  must  show  the  recordation  thereof;  but  it  will  be  suf- 
ficient if  such  certified  copy  is  attached  to  and  made  a  part  of  the 
abstract  of  title. 

(&)  One  of  the  principal  purposes  of  the  act  is  to  limit  the  number 
of  placer  mining  locations  made  in  Alaska  through  agents  or  attorneys. 
An  agent  or  attorney  can  not  at  one  time  represent  more  than  two  individ- 
uals or  one  association  under  powers  of  attorney.  A  duly  authorized 
agent  may  make  two  locations  for  each  of  two  individual  principals,  or 
for  one  association  principal,  during  any  calendar  month,  but  he  can 
make  no  further  locations  during  that  month  for  those  or  other  prin- 
cipals. 

The  application  for  patent  should  accordingly  be  accompanied  by  the 
sworn  statement  of  the  agent  or  attorney  setting  forth  specifically  the 
names  of  all  placer  mining  claims,  together  with  the  date  of  location  and 
names  of  the  locators,  which  were  located  or  attempted  to  be  located  by 
him  under  powers  of  attorney  during  the  calendar  month  in  which  the 
placer  claim  applied  for  was  located. 

(c)  By  section  3  it  is  prescribed  that  no  person  shall  directly  locate, 
or  through  an  agent  or  attorney  cause  or  procure  to  be  located,  for  him- 
self more  than  two  placer  mining  claims  in  any  calendar  month:  Pro- 
vided, however,  That  one  or  both  of  such  locations  may  be  included  in  an 
association  claim. 

Whenever  a  person  or  an  association  has  participated  in  the  locating 
of  placer  mining  claims  in  Alaska  to  the  extent  of  two  such  claims  in  any 
calendar  month,  such  person  or  such  association  thereby  exhausts  the 


508  LAND  OFFICE  RULES. 

right  to  make  placer  location  for  that  month.  The  application  for  pat- 
ent, therefore,  for  a  placer  mining  claim  located  in  Alaska  on  or  after 
August  1,  1912,  must  contain  or  be  accompanied  by  a  specific  statement, 
under  oath,  as  to  each  locator  who  had  an  interest  therein,  showing  spe- 
cifically and  in  detail  all  placer  locations  made  by  him,  or  in  which  he 
was  associated,  either  directly  or  through  any  agent  or  attorney,  during 
the  calendar  month  in  which  the  claim  applied  for  was  located.  If  no 
locations  in  excess  of  those  permitted  by  law  were  made  during  such 
calendar  month  a  specific  statement,  under  oath,  to  that  effect,  should  be 
submitted.  This  showing  must  be  made  in  addition  to  that  hereinabove 
required  of  the  agent  himself. 

Section  4  of  the  act  prohibits  the  patenting  of  any  placer  mining 
claim  located  in  Alaska  after  the  passage  of  the  act,  which  contains  a 
greater  area  than  that  fixed  by  law  or  which  is  longer  than  three  times 
its  greatest  width.  The  surveyor  general  will  be  careful  to  observe  the 
above  requirements  and  will  not  approve  any  survey  of  a  placer  location 
which  does  not  in  area  and  dimensions  conform  to  the  provisions  of  law. 

By  section  5  of  the  act  it  is  declared  that  any  placer  mining  claim 
attempted  to  be  located  in  violation  of  the  provisions  and  limitations  of 
the  act  shall  be  null  and  void  and  the  whole  area  covered  by  such 
attempted  location  may  be  located  by  any  qualified  person  the  same  as  if 
no  such  prior  attempted  location  had  been  made.  Consequently,  any 
attempted  placer  location  not  made  in  conformity  with  the  act  is  a  nullity 
and  the  land  covered  thereby  is  open  for  and  subject  to  proper  location 
at  any  time. 

It  will  be  observed  that  the  act  does  not  affect  the  number  of  claims, 
lode  or  placer,  and  if  placer  whether  located  before  or  after  the  passage 
of  the  act,  which  may  be  included  in  a  single  application  proceeding. 

MILL  SITES. 

61.  Land  entered  as  a  mill  site  must  be  shown  to  be 

non-mineral.  Mill  sites  are  simply  auxiliary  to  the  working  of  min- 
eral claims,  and  as  section  2337,  which  provides  for  the  patenting  of  mill 
sites,  is  embraced  in  the  chapter  of  the  Eevised  Statutes  relating  to  min- 
eral lands,  they  are  therefore  included  in  this  circular. 

62.  Non-Contiguous  —  Independent     Application.  —  To 

avail  themselves  of  this  provision  of  law,  parties  holding  the  possessory 
right  to  a  vein  or  lode  claim,  and  to  a  piece  of  non-mineraj  land  not  con- 
tiguous thereto  for  mining  or  milling  purposes,  not  exceeding  the  quan 
tity  allowed  for  such  purpose  by  section  2337,  or  prior  laws,  under  which 
the  land  was  appropriated,  the  proprietors  of  such  vein  or  lode  may  file 
in  the  proper  land  office  their  application  for  a  patent,  under  oath,  in 
manner  already  set  forth  herein,  which  application,  together  with  the 
plat  and  field  notes,  may  include,  embrace,  and  describe,  in  addition  to 


LAND  OFFICE  EULES.  509 

the  vein  or  lode  claim,  such  non-contiguous  mill  site,  and  after  due  pro- 
ceeil'ngs  as  to  notice,  etc.,  a  patent  will  be  issued  conveying  the  same  aa 
one  claim.  The  owner  of  a  patented  lode  may,  by  an  independent  appli- 
cation, secure  a  mill  site  if  good  faith  is  manifest  in  its  use  or  occupa- 
tion in  connection  with  the  lode  and  no  adverse  claim  exists. 

63.  Sur.  Nos.  "A"  and  "B." — Where  the  original  survey 
includes   a   lode  claim   and  also  a   mill   site   the   lode  claim  should   be 
described  in  the  plat  and  field  notes  as  "Sur.  No.  37,  A,"  and  the  mill 
site  as  "Sur.  No.  37,  B,"  or  whatever  may  be  its  appropriate  numerical 
designation;  the  course  and  distance  from  a  corner  of  the  mill  site  to  a 
corner  of  the  lode  claim  to  be  invariably  given  in  such  plat  and  field 
notes,  and  a  copy  of  the  plat  and  notice  of  application  for  patent  must 
be  conspicuously  posted  upon  the  mill  site  as  well  as  upon  the  vein  or 
lode  claim  for  the  statutory  period  of  sixty  days.     In  making  the  entry 
no  separate  receipt  or  certificate  need  be  issued  for  the  mill  site,  but  the 
whole  area  of  both  lode  and  mill  site  will  be  embraced  in  one  entry,  the 
price  being  five  dollars  for  each  acre  and  fractional  part  of  an  acre 
embraced  by  such  lode  and  mill-site  claim. 

64.  Mill  Site  Without  Lode. — In  case  the  owner  of  a  quartz 

mill  or  reduction  works  is  not  the  owner  or  claimant  of  a  vein  or  lode 
claim  the  law  permits  him  to  make  application  therefor  in  the  same 
manner  prescribed  herein  for  mining  claims,  and  after  due  notice  and 
proceedings,  in  the  absence  of  a  valid  adverse  filing,  to  enter  and  receive 
a  patent  for  his  mill  site  at  said  price  per  acre. 

65.  Proof  of  Non-Mineral  Character. — In  every  case  there 

must  be  satisfactory  proof  that  the  land  claimed  as  a  mill  site  is  not 
mineral  in  character,  which  proof  may,  where  the  matter  is  unquestioned, 
consist  of  the  sworn  statement  of  two  or  more  persons  capable,  from 
acquaintance  with  the  land,  to  testify  understandingly. 

CITIZENSHIP. 

66.  Proof — How  Made. — The  proof  necessary  to  establish 

the  citizenship  of  applicants  for  mining  patents  must  be  made  in  the 
following  manner:  In  case  of  an  incorporated  company,  a  certified  copy 
of  their  charter  or  certificate  of  incorporation  must  be  filed.  In  case  of 
an  association  of  persons  unincorporated,  the  affidavit  of  their  duly 
authorized  agent,  made  upon  his  own  knowledge  or  upon  information 
and  belief,  setting  forth  the  residence  of  each  person  forming  such  asso- 
ciation, must  be  submitted.  This  affidavit  must  be  accompanied  by  a 
power  of  attorney  from  the  parties  forming  such  association,  author! /.in<r 
the  person  who  makes  the  affidavit  of  citizenship  to  act  for  them  in  tlio 
matter  of  their  application  for  patent. 


510  LAND  OFFICE  EULES. 

* 

67.  In  case  of  an  individual  or  an  association  of  individ- 
uals who  do  not  appear  by  their  duly  authorized  agent,  the  affidavit  of 
each  applicant,  showing  whether  he  is  a  native  or  naturalized  citizen, 
when  and  where  born,  and  his  residence,  will  be  required. 

68.  In  case  an  applicant  has  declared  his  intention  to 

become  a  citizen  or  has  been  naturalized,  his  affidavit  must  show  the 
date,  place,  and  the  court  before  which  he  declared  his  intention,  or  from 
which  his  certificate  of  citizenship  issued,  and  present  residence. 

69.  Affidavit— Where  Made.— The  affidavit  of  the  claimant 

as  to  his  citizenship  may  be  taken  before  the  register  or  receiver,  or  any 
other  officer  authorized  to  administer  oaths  within  the  land  districts; 
or,  if  the  claimant  is  residing  beyond  the  limits  of  the  district,  the  affidavit 
may  be  taken  before  the  clerk  of  any  court  of  record  or  before  any 
notary  public  of  any  State  or  Territory. 

70.  Proof  by  Disinterested  Witnesses. — If  citizenship  is 

established  by  the  testimony  of  disinterested  persons,  such  testimony  may 
be  taken  at  any  place  before  any  person  authorized  to  administer  oaths, 
and  whose  official  character  is  duly  verified. 

71.  Patent  Issues  to  Applicant. — No  entry  will  be  allowed 

until  the  register  has  satisfied  himself,  by  careful  examination,  that 
proper  proofs  have  been  filed  upon  the  points  indicated  in  the  law  and 
official  regulations.  Transfers  made  subsequent  to  the  filing  of  the  appli- 
cation for  patent  will  not  be  considered,  but  entry  will  be  allowed  and 
patent  issued  in  all  cases  in  the  name  of  the  applicant  for  patent,  the 
title  conveyed  by  the  patent,  of  course,  in  each  instance  inuring  to  the 
transferee  of  such  applicant  where  a  transfe'r  has  been  made  pending  the 
application  for  patent. 

72.  Mineral  Entries  Numbered. — The  mineral  entries  will 

be  given  the  current  serial  numbers  according  to  the  provisions  of  the 
circular  of  June  10,  1908,  whether  the  same  are  of  lode  or  placer  claims 
or  of  mill  sites. 

73.  Register's  Certificate  of  Posting. — In  sending  up  the 
papers  in  a  case  the  register  must  not  omit  certifying  to  the  fact  that 
the  notice  was  posted  in  his  office  for  the  full  period  of  sixty  days,  such 
certificate  to  state  distinctly  when  such  posting  was  done  and  how  long 
continued.     The  schedule  of  papers,  form  4-252f,  should  accompany  the 
returns  with  all  mineral  applications  and  entries  allowed. 

POSSESSOEY  EIGHT. 

74.  Chain  of  Title  Broken  but  Possession  Clear. — The  pro- 
visions of  section  2332,  Eevised  Statutes,  will  greatly  lessen  the  burden 
of  proof,  more  especially  in  the  case  of  old  claims  located  many  years 


LAND  OFFICE  RULES.  511 

since,  the  records  of  which,  in  many  cases,  have  been  destroyed  by  fire, 
or  lost  in  other  ways  during  the  lapse  of  time,  but  concerning  the  pos- 
sessory right  to  which  all  controversy  or  litigation  has  long  been  settled. 

75.  Proof  in  Such  Case. — When  an  applicant  desires  to 

make  his  proof  of  possessory  right  in  accordance  with  this  provision  of 
law,  he  will  not  be  required  to  produce  evidence  of  location,  copies  of 
conveyances,  or  abstracts  of  title,  as  in  other  cases,  but  will  be  required 
to  furnish  a  duly  certified  copy  of  the  statute  of  limitation  of  mining 
claims  for  the  State  or  Territory,  together  with  his  sworn  statement 
giving  a  clear  and  succinct  narration  of  the  facts  as  to  the  origin  of  his 
title,  and  likewise  as  to  the  continuation  of  his  possession  of  the  mining 
ground  covered  by  his  application;  the  area  thereof;  the  nature  and 
extent  of  the  mining  that  has  been  done  thereon;  whether  there  has  been 
any  opposition  to  his  possession,  or  litigation  with  regard  to  his  claim, 
and  if  so,  when  the  same  ceased;  whether  such  cessation  was  caused  by 
compromise  or  by  judicial  decree,  and  any  additional  facts  within  the 
claimant's  knowledge  having  a  direct  bearing  upon  his  possession  and 
bona  fides  which  he  may  desire  to  submit  in  support  of  his  claim. 

76.  Proof  of  No  Litigation.— There  should  likewise  be  filed 

a  certificate,  under  seal  of  the  court  having  jurisdiction  of  mining  cases 
within  the  judicial  district  embracing  the  claim,  that  no  suit  or  action  of 
any  character  whatever  involving  the  right  of  possession  to  any  portion 
of  the  claim  applied  for  is  pending,  and  that  there  has  been  no  litiga- 
tion before  said  court,  affecting  the  title  to  said  claim  or  any  part  thereof 
for  a  period  equal  to  the  time  fixed  by  the  statute  of  limitations  for 
mining  claims  in  the  State  or  Territory  as  aforesaid  other  than  that 
which  has  been  finally  decided  in  favor  of  the  claimant. 

77.  Corroborative  Testimony. — The  claimant  should  sup- 
port his  narrative  of  facts  relative  to   his  possession,   occupancy,   and 
improvements  by  corroborative  testimony  of  any  disinterested  person  or 
persons  of  credibility  who  may  be  cognizant  of  the  facts  in  the  case  and 
are  capable  of  testifying  understand!  ngly  in  the  premises. 

ADVERSE  CLAIMS. 

78.  An  adverse  claim  must  be  filed  with  the  register  and 

receiver  of  the  land  office  where  the  application  for  patent  is  filed  or  with 
the  register  and  receiver  of  the  district  in  which  the  land  is  situated  at 
the  time  of  filing  the  adverse  claim.  It  must  be  on  the  oath  of  the 
adverse  claimant,  or  it  may  be  verified  by  the  oath  of  any  duly  author- 
ized agent  or  attorney  in  fact  of  the  adverse  claimant  cognizant  of  the 
facts  stated. 


512  LAND  OFFICE  RULES. 

79.  Verification  by  Agent. — Where  an  agent  or  attorney 

in  fact  verifies  the  adverse  claim,  he  must  distinctly  swear  that  he  is 
such  agent  or  attorney,  and  accompany  his  affidavit  by  proof  thereof. 

80.  Same — In  Land  District. — The  agent  or  attorney  in 

fact  must  make  the  affidavit  in  verification  of  the  adverse  claim  within 
the  land  district  where  the  claim  is  situated. 

81.  Must  Show  Conflict. — The  adverse  claim  so  filed  must 
fully  set  forth  the  nature  and  extent  of  the  interference  or  conflict; 
whether  the  adverse  party  claims  as  a  purchaser  for  valuable  considera- 
tion or  as  a  locator.     If  the  former,  a  certified  copy  of  the  original  loca- 
tion, the  original  conveyance,  a  duly  certified  copy  thereof,  or  an  abstract 
of  title  from  the  office  of  the  proper  recorder  should  be  furnished,  or  if 
the  transaction  was  a  merely  verbal  one  he  will  narrate  the  circumstances 
attending  the  purchase,  the  date  thereof,  and  the  amount  paid,  which 
facts  should  be  supported  by  the  affidavit  of  one  or  more  witnesses,  if  any 
were  present  at  the  time,  and  if  he  claims  as  a  locator  he  must  file  a  duly 
certified  copy  of  the  location  from  the  office  of  the  proper  recorder. 

82.  Plat  of  Conflict — Legal  Subdivisions. — In  order  that 
the  ""boundaries"  and  "extent"  of  the  claim  may  be  shown,  it  will  be 
incumbent  upon  the  adverse  claimant  to  file  a  plat  showing  his  entire 
claim,  its  relative  situation  or  position  with  the  one  against  which  he 
claims,  and  the  extent  of  the  conflict:    Provided,  hoivever,  That  if  the 
application   for  patent   describes   the   claim  by  legal   subdivisions,   the 
adverse  claimant,  if  also  claiming  by  legal  subdivisions,  may  describe  his 
adverse  claim  in  the  same  manner  without  further  survey  or  plat.    If  the 
claim  is  not  described  by  legal  subdivisions,  it  will  generally  be  more 
satisfactory  if  the  plat  thereof  is  made  from  an  actual  survey  by  a  min- 
eral surveyor,  and  its  correctness  officially  certified  thereon  by  him. 

83.  Notice  of  Filing  Adverse. — Upon  the  foregoing  being 

filed  within  the  sixty  days'  period  of  publication,  the  register,  or  in  his 
absence  the  receiver,  will  immediately  give  notice  in  writing  to  the  parties 
that  such  adverse  claim  has  been  filed,  informing  them  that  the  party 
who  filed  the  adverse  claim  will  be  required  within  thirty  days  from  the 
date  of  such  filing  to  commence  proceedings  in  a  court  of  competent  jur- 
isdiction to  determine  the  question  of  right  of  possession,  and  to  prose- 
cute the  same  with  reasonable  diligence  to  final  judgment,  and  that, 
should  such  adverse  claimant  fail  to  do  so,  his  adverse  claim  will  be  con- 
sidered waived  and  the  application  for  patent  be  allowed  to  proceed 
upon  its  merits. 

84.  Adverse  Stays  Proceedings. — When  an  adverse  claim 

is  filed  as  aforesaid,  the  register  or  receiver  will  indorse  upon  the  same 
the  precise  date  of  filing,  and  preserve  a  record  of  the  date  of  notifications 


LAND  OFFICE  RULES.  513 

issued  thereon;  and  thereafter  all  proceedings  on  the  application  for 
patent  will  be  stayed  with  the  exception  of  the  completion  of  the  pub- 
lication and  posting  of  notices  and  plat  and  the  filing  of  the  necessary 
proof  thereof,  until  the  controversy  shall  have  been  finally  adjudicated 
in  court  or  the  adverse  claim  waived  or  withdrawn. 

Adverse   Claims  in  Alaska. —  (a)    The  Act   of   Congress 

approved  June  7,  1910  (36  Stat.  L.  459),  relates  to  the  filing  of  adverse 
claims  and  the  institution  of  suits  thereon,  with  respect  to  mineral  appli- 
cations in  the  Territory  of  Alaska.  ' 

In  administering  this  act  the  foregoing  regulations  should  be  followed 
in  so  far  as  they  are  applicable,  and  these  additional  instructions  are  pre- 
scribed. 

Extension  of  Time  for  Filing  Adverse  Claims. 

The  act  provides  that  adverse. claims  may  be  filed  at  any  time  during 
the  60-day  period  of  publication  or  within  8  months  thereafter.  This 
provision  applies  to  any  application  where  the  60-day  period  of  pub- 
lication ended  with,  or  ends  after,  June  7,  1910,  and  operates  to  enlarge 
by  8  months  additional  the  time  within  which  an  adverse  claim  may  be 
filed.  This  provision  does  not  apply  to  any  application  under  which  the 
60-day  period  of  publication  ended  with,  or  before,  June  6,  1910,  for,  if 
no  adverse  claim  was  seasonably  filed  in  such  case,  the  statutory  assump- 
tion that  none  existed  has  arisen,  upon  the  expiration  of  the  publication 
period,  in  favor  of  the  applicant. 

Extension  of  Time  Within  Which  Adverse  Suits  May  Be 
Instituted. 

(6)  It  is  also  provided  by  the  act  that  adverse  suits  may  be  insti- 
tuted at  any  time  within  60  days  after  the  filing  of  adverse  claims  in  the 
local  land  office.  This  provision  applies  to  any  adverse  claim  under 
which  the  30-day  period  fixed  under  the  former  law  for  commencing  the 
adverse  suit  was  running  on,  or  expired  with,  June  7,  1910,  and  enlarges 
such  time  to  a  period  of  60  days,  and  also  to  any  adverse  claim  which  is 
seasonably  filed  on,  or  after,  June  7,  1910.  Such  provision  has  no  opera- 
tion in  a  case  where,  under  the  former  law,  the  30-day  period  within 
which  to  institute  suit  on  an  adverse  claim  expired  with,  or  ended  before, 
June  6,  1910,  and  the  60-day  publication  period  also  expired  on  or  before 
June  6,  1910. 

Registers  and  receivers  of  United  States  land  offices  in  Alaska  will 
exercise  the  greatest  care  in  applying  the  provisions  of  the  act,  and  will 
allow  no  mineral  entry  until  after  the  expiration  of  the  full  period 
granted  for  the  filing  of  adverse  claims.  For  example,  on  any  applica- 


514      •  LAND  OFFICE  EULES. 

tion  under  which  the  publication  period  ended  with,  or  after,  June  7, 
1910,  no  entry  will  in  any  event  be  allowed  until  after  the  expiration  of 
the  eight-months  period  following  the  publication  period.  (Instructions, 
June  25,  1910.) 

85.  Copy  of  Judgment  Roll. — Where  an  adverse  claim  has 
been  filed  and  suit  thereon  commenced  within  the  statutory  period  and 
final  judgment  rendered  determining  the  right  of  possession,  it  will  not 
be  sufficient  to  file  with  the  register  a  certificate  of  the  clerk  of  the  court 
setting  forth  the  facts  as  to  such  judgment,  but  the  successful  party 
must,  before  he  is  allowed  to  make  entry,  file  a  certified  copy  of  the 
judgment  roll,  together  with  the  other  evidence  required  by  section  2326 
Revised  Statutes,  and  a  certificate  of  the  clerk  of  the  court  under  the. 
seal  of  the  court  showing,  in  accord  with  the  record  facts  of  the  ease, 
that  the  judgment  mentioned  and  described  in  the  judgment  roll  afore- 
said is  a  final  judgment;  that  the  time  for  appeal  therefrom  has,  under 
the  law,  expired,  and  that  no  such  appeal  has  been  filed,  or  that  the 
defeated  party  has  waived  his  right  to  appeal.    Other  evidence  showing 
such  waiver  or  an  abandonment  of  the  litigation  may  be  filed.     (As 
amended  April  9,  1915.) 

86.  Dismissal  of  Adverse  Suit. — Where  such  suit  has  been 
dismissed,  a  certificate  of  the  clerk  of  the  court  to  that  effect  or  a  certi- 
fied copy  of  the  order  of  dismissal  will  be  sufficient. 

87.  Relinquishment    After    Adverse. — After    an    adverse 

claim  has  been  filed  and  suit  commenced,  a  relinquishment  or  other  evi- 
dence of  abandonment  of  the  adverse  claim  will  not  be  accepted,  but  the 
case  must  be  terminated  and  proof  thereof  furnished  as  required  by  the 
last  two  paragraphs. 

88.  Certificate  of  No  Suit  Brought. — Where  an  adverse 

claim  has  been  filed  but  no  suit  commenced  against  the  applicant  for 
patent  within  the  statutory  period,  a  certificate  to  that  effect  by  the  clerk 
of  the  State  court  having  jurisdiction  in  the  case,  and  also  by  the  clerk 
of  the  District  Court  of  the  United  States  for  the  district  in  which  the 
claim  is  situated,  will  be  required.  (As  amended  November  6,  1912.) 

APPOINTMENT    OF    SURVEYORS    FOR    SURVEY    OF    MINING 
CLAIMS  AND  CHARGES. 

89.  Newspaper  Charges. — Section  2334  provides  for  the 

appointment  of  surveyors  to  survey  mining  claims,  and  authorizes  the 
Commissioner  of  the  General  Land  Office  to  establish  the  rates  to  be 
charged  for  surveys  and  for  newspaper  publications  in  mining  cases. 
Under  this  authority  of  law,  the  following  rates  have  been  established 
as  the  maximum  charges  for  newspaper  publications: 


LAND  OFFICE  EULES.  515 

Newspaper  Charges  in  Alaska. 

(1)  The  charge  for  the  publication  of  notice  of  application  for  pat- 
ent in  a  mining  case,  in  all  districts,  exclusive  of  Fairbanks,  Alaska,  shall 
not  exceed  the  legal  rates  allowed  by  the  laws  of  the  State,  wherein  the 
notice  is  published,  for  the  publication  of  legal  notices,  and  in  no  case 
shall  the  charge  exceed  $7  for  each  10  lines  of  space  occupied  where  pub- 
lication is  had  in  a  daily  newspaper,  and  where  a  weekly  newspaper  is 
used  as  a  medium  of  publication  $5  shall  be  the  maximum  charge  for 
the  same  space.    Such  charge  shall  be  accepted  as  full  payment  for  pub- 
lication in  each  issue  of  the  newspaper  for  the  entire  period  required 
by  law. 

For  such  publications  in  the  Fairbanks  district  the  maximum  rate  is 
fixed  at  $10  for  each  10  lines  of  space  in  a  daily  newspaper  for  the 
required  period,  and  at  $7  for  the  same  space  and  time  if  publication  be 
had  in  a  weekly  newspaper. 

It  is  expected  that  these  notices  shall  not  be  so  abbreviated  as  to  curtail 
the  description  essential  to  a  perfect  notice,  and  the  said  rates  are  estab- 
lished upon  the  understanding  that  they  are  to  be  in  the  usual  body  type 
used  for  legal  notices. 

(2)  For  the  publication  of  citations  in  contests  or  hearings,  involving 
the  character  of  lands,  the  charges  may  not  exceed  the  rates  provided 
for  similar  notices  by  the  law  of  the  State,  and  shall  not  exceed  $8  for 
5  publications  in  a  weekly  newspaper,  or  $10  for  publication  in  a  daily 
newspaper  for  30  days.     (As  amended  June  23-July  1,  1913,  and  Novem- 
ber 28,  1913.) 

90.  Appointment  of  Mineral  Surveyors — Bond. — The  sur- 
veyors general  of  the  several  districts  will,  in  pursuance  of  said  law, 
appoint  in  each  land  district  as  many  competent  surveyors  for  the  survey 
of   mining   claims  as   may  seek  such   appointment,   it   being    distinctly 
understood  that  all  expenses  of  these  notices  and  surveys  are  to  be  borne 
by  the  mining  claimants  and  not  by  the  United  States.     The  statute 
provides  that  the  claimant  shall  also  be  at  liberty  to  employ  any  United 
States  mineral  surveyor  to  make  the  survey.     Each  surveyor  appointed 
to  survey  mining  claims  before  entering  upon  the  duties  of  his  office  or 
appointment  shall  be  required  to  enter  into  a  bond  of  not  less  than  $5000 
for  the  faithful  performance  of  his  duties. 

91.  Surveyor  General's  Fees. — With  regard  to  the  plat- 
ting of  the  claim  and  other  office  work  in  the  surveyor  general's  office, 
that  officer  will  make  an  estimate  of  the  cost  thereof,  which  amount  the 
claimant  will  deposit  with  any  assistant  United  States  treasurer  or  desig- 
nated depository  in  favor  of  the  United  States  Treasurer,  to  be  passed  to 
the  credit  of  the  fund  created  by  ' '  deposits  by  individuals  for  surveying 
public  lands,"  and  file  with  the  surveyor  general  duplicate  certificates 
of  such  deposit  in  the  usual  manner. 


516  LAND  OFFICE  RULES. 

92.  Surveyors  for  Each  District.— The  surveyors  general 

will  endeavor  to  appoint  surveyors  to  survey  mining  claims  so  that  one 
or  more  may  be  located  in  each  mining  district  for  the  greater  convenience 
of  miners. 

93.  Oaths  of  Surveyors. — The  usual  oaths  will  be  required 
of  these  surveyors  and  their  assistants  as  to   the  correctness  of  each 
survey  executed  by  them. 

The  duty  of  the  surveyor  ceases  when  he  has  executed  the  survey  and 
returned  the  field  notes  and  preliminary  plat  thereof  with  his  report  to 
the  surveyor  general.  He  will  not  be  allowed  to  prepare  for  the  mining 
claimant  the  papers  in  support  of  an  application  for  patent,  or  other- 
wise perform  the  duties  of  an  attorney  before  the  land  office  in  connec- 
tion with  a  mining  claim. 

The  surveyors  general  and  local  land  officers  are  expected  to  report 
any  infringement  of  this  regulation  to  this  office. 

94.  Excessive  Charges. — Should  it  appear  that  excessive  or 

exorbitant  charges  have  been  made  by  any  surveyor  or  any  publisher, 
prompt  action  will  be  taken  with  the  view  of  correcting  the  abuse. 

FEES  OF  EEGISTEES  AND  RECEIVERS. 

95.  Fees  for  Applications  and  Adverses. — The  fees  payable 

to  the  register  and  receiver  for  filing  and  acting  upon  applications  for 
mineral-land  patents  are  five  dollars  to  each  officer,  to  be  paid  by  the 
applicant  for  patent  at  the  time  of  filing,  and  the  like  sum  of  five  dollars 
is  payable  to  each  officer  by  an  adverse  claimant  at  the  time  of  filing  his 
adverse  claim.  (Sec.  2238,  R.  S.,  par.  9.) 

[Paragraphs  96,  97,  and  98  are  superseded  by  the  general  circular 
instructions  of  May  4,  1912,  prescribing  the  method  of  keeping  records 
and  accounts  relating  to  the  public  lands.] 

HEARINGS  TO  DETERMINE  CHARACTER  OF  LANDS. 

99.  The  Rules  of  Practice  in  cases  before  the  United  States 
district  land  offices,  the  General  Land  Office,  and  the  Department  of  the 
Interior  will,  so  far  as  applicable,  govern  in  all  cases  and  proceedings 
arising  in  contests  and  hearings  to  determine  the  character  of  lands. 

100.  Mineral  Land  Withheld  from  Agricultural  Entry.— 

Public  land  returned  by  the  Surveyor  General  as  mineral  shall  be  with- 
held from  entry  as  agricultural  land  until  the  presumption  arising  from 
such  a  return  shall  be  overcome  by  testimony  taken  in  the  manner  here- 
inafter described. 


LAND  OFFICE  RULES.  517 

101.  Hearings  to  determine  the  character  of  lands: 

(1)  Lands  returned  as  mineral  by  the  Surveyor  General. 

When  such  lands  are  sought  to  be  entered  as  agricultural  under  laws 
which  require  the  submission  of  final  proof  after  due  notice  by  publica- 
tion and  posting,  *the  filing  of  the  proper  non-mineral  affidavit  in  the 
absence  of  allegations  that  the  land  is  mineral  will  be  deemed  sufficient 
as  a  preliminary  requirement.  A  satisfactory  showing  as  to  character  of 
land  must  be  made  when  final  proof  is  submitted. 

In  case  of  application  to  enter,  locate,  or  select  such  lands  as  agricultural, 
under  laws  in  which  the  submission  of  final  proof  after  due  publication 
and  posting  is  not  required,  notice  thereof  must  first  be  given  by  publica- 
tion for  sixty  days  and  posting  in  the  local  office  during  the  same  period, 
and  affirmative  proof  as  to  the  character  of  the  land  submitted.  In  the 
absence  of  allegations  that  the  land  is  mineral,  and  upon  compliance  with 
this  requirement,  the  entry,  location,  or  selection  will  be  allowed,  if 
otherwise  regular. 

(2)  Lands   returned   as   agricultural   and    alleged    to    be   mineral    in 
character. 

Where  as  against  the  claimed  right  to  enter  such  lands  as  agricultural 
it  is  alleged  that  the  same  are  mineral,  or  are  applied  for  as  mineral  lands, 
the  proceedings  in  this  class  of  cases  will  be  in  the  nature  of  a  contest, 
and  the  practice  will  be  governed  by  the  rules  in  force  in  contest  cases. 

[Paragraphs  102  to  104,  inclusive,  are  superseded  by  appropriate 
instructions  relative  to  non-mineral  proofs  in  railroad,  State,  and  forest 
lieu  selections  contained  in  separate  circulars.  (See,  as  to  railroad  selec- 
tions, Instructions  in  43  L.  D.,  476;  as  to  State  selections,  circular  in 
39  L.  D.,  39;  and  as  to  forest  lieu  selections,  31  L.  D.,  372,  33  L.  D., 
558,  36  L.  D.,  278,  346,  and  38  L.  D.,  287.)] 

105.  Examination  of  Witnesses. — At  hearings  to  deter- 
mine the  character  of  lands  the  claimants  and  witnesses  will  be  thoroughly 
examined  with  regard  to  the  character  of  the  land;  whether  the  same  has 
been  thoroughly  prospected;  whether  or  not  there  exists  within  the  tract 
or  tracts  claimed  any  lode  or  vein  of  quartz  or  other  rock  in  place  bearing 
gold,  silver,  cinnabar,  lead,  tin,  or  copper,  or  other  valuable  deposit  which 
has  ever  been  claimed,  located,  recorded,  or  worked ;  whether  such  work  is 
entirely  abandoned,  or  whether  occasionally  resumed;  if  such  lode  does 
exist,  by  whom  claimed,  under  what  designation,  and  in  which  subdivision 
of  the  land  it  lies;  whether  any  placer  mine  or  mines  exist  upon  the  land; 
if  so,  what  is  the  character  thereof — whether  of  the  shallow-surface 
description,  or  of  the  deep  cement,  blue  lead,  or  gravel  deposits;  to  what 
extent  mining  is  carried  on  when  water  can  be  obtained,  and  what  the 
facilities  are  for  obtaining  water  for  mining  purposes;  upon  what  par- 


518  LAND  OFFICE  RULES. 

ticular  ten-acre  subdivisions  mining  has  been  done,  and  at  what  time  the 
land  was  abandoned  for  mining  purposes,  if  abandoned  at  all.  In  every 
case,  where  practicable,  an  adequate  quantity  or  number  of  representative 
samples  of  the  alleged  mineral-bearing  matter  or  material  should  be 
offered  in  evidence,  with  proper  identification,  to  be  considered  in  connec- 
tion with  the  record,  with  which  they  will  be  transmitted  upon  each  appeal 
that  may  be  taken.  Testimony  may  be  submitted  as  to  the  geological 
formation  and  development  of  mineral  on  adjoining  or  adjacent  lands 
and  their  relevancy.  .  , 

106.  Agricultural    Capacities    of    Land. — The    testimony 

should  also  show  the  agricultural  capacities  of  the  land,  what  kind  of 
crops  are  raised  thereon,  and  the  value  thereof;  the  number  of  acres 
actually  cultivated  for  crops  of  cereals  or  vegetables,  and  within  which 
particular  ten-acre  subdivision  such  crops  are  raised;  also  which  of  these 
subdivisions  embrace  the  improvements,  giving  in  detail  the  extent  and 
value  of  the  improvements,  such  as  house,  barn,  vineyard,  orchard,  fencing, 
etc.,  and  mining  improvements. 

107.  Testimony  as  to  Mineral  Character. — The  testimony 

should  be  as  full  and  complete  as  possible;  and  in  addition  to  the  leading 
points  indicated  above,  where  an  attempt  is  made  to  prove  the  mineral 
character  of  lands  which  have  been  entered  under  the  agricultural  laws, 
it  should  show  at  what  date,  if  at  all,  valuable  deposits  of  minerals  were 
first  known  to  exist  on  the  lands. 

108.  Segregating    Mineral    from    Agricultural    Land. — 

When  the  case  comes  before  this  office,  such  decision  will  be  made  as  the 
law  and  the  facts  may  justify.  In  cases  where  a  survey  is  necessary  to  set 
apart  the  mineral  from  the  agricultural  land,  the  proper  party,  at  his  own 
expense,  will  be  required  to  have  the  work  done  by  a  reliable  and  compe- 
tent surveyor  to  be  designated  by  the  Surveyor  General.  Application 
therefor  must  be  made  to  the  Register  and  Receiver,  accompanied  by 
description  of  the  land  to  be  segregated  and  the  evidence  of  service  upon 
the  opposite  party  of  notice  of  his  intention  to  have  such  segregation 
made.  The  Register  and  Receiver  will  forward  the  same  to  this  office, 
when  the  necessary  instructions  for  the  survey  will  be  given.  The  survey 
in  such  case,  where  the  claims  to  be  segregated  are  vein  or  lode  claims, 
must  be  executed  in  such  manner  as  will  conform  to  the  requirements  in 
section  2320,  Revised  Statutes,  as  to  length  and  width  and  parallel  end 
lines. 

(a)  In  order  to  secure  uniformity  of  practice  in  the  execution  of 
mineral  segregation  surveys  authorized  under  paragraph  108  et  seq.  of 
these  regulations  and  to  present  a  proper  basis  for  intelligent  action,  the 
following  directions  are  given.  They  will  supersede  all  previous  instruc- 
tions with  which  they  are  in  conflict,  and  will  be  adopted  without  refer- 


LAND  OFFICE  RULES.  519 

ence  to  precedent  or  practice  formerly  permitted  by  the  General  Land 
Office  or  the  Department. 

( b)  There  appears  to  exist  a  very  general,  although  erroneous,  assump- 
tion that,  because  the  surveys  in  question  relate  to  the  segregation  of 
mineral  land,  are  authorized  by  the  mining  regulations,  and  are  usually 
executed  by  United  States  mineral  surveyors,  they  therefore  partake  of 
the  nature  of  mineral  surveys.     That  this  is  not  the  ease  will  be  evident 
upon  consideration  of  the  fact  that  the  necessity  for  mineral  segregation 
surveys  arises  almost  exclusively  with  'reference  to  "lands  returned  as 
agricultural  and  alleged  to  be  mineral  in  character"    (ante,  par.   101, 
Sec.  2),  where  the  survey,  made  at  the  instance,  for  the  benefit,  and  at  the 
expense  of  the  homestead  entryman,  is  designed  solely  to  define  the  boun- 
daries of,  and  provide  a  legal  description  for,  the  agricultural  land  for 
which   application  is  made.      The  circumstances   that  such  surveys   are 
usually   executed   by   United    States   mineral   surveyors   is   without    sig- 
nificance, as  the  regulations  provide  only  that  the  work  shall  be  done  by 
"a  reliable  and  competent  surveyor  to  be  designated  by  the  Surveyor 
General."     This  would  include   county   or   other  surveyors  in  private 
practice. 

(c)  Authority  for  the  survey  having  issued,  and  a  surveyor  having  been 
designated  by  the  Surveyor  General,  the  instructions  addressed  to  the 
surveyor   will   particularly  emphasize   the   fact  that  the  survey  is  non- 
mineral  in  character,  and  as  an  aid  to  the  preparation  of  such  instructions 
the  Surveyor  General's  attention  is  directed  to  the  following  considera- 
tions : 

(d)  To  all  intents  and  purposes  the  segregation  survey  is  ex  parte 
procedure  and  confers  no  permanent  rights  or  benefits  upon  the  mineral 
claimant.     The  definition,  in  whole  or  in  part,  of  the  boundaries  of  the 
mining  claim  is  merely  incidental  to  the  determination  of  the  confines  of 
the  agricultural  entry,  and  the  survey,  which  may  involve  the  retracement 
and  re-establishment  of  the  public-land  lines  and  the  subdivision  of  thfc 
section,  is  effective  upon  the  mineral  claim  only  as  a  location  survey, 
permitting  greater  accuracy  of  description  than  is  usually  attained  by  the 
somewhat  crude  methods  of  the  locator. 

(e)  While  a  discussion  in  detail  of  the  field  procedure  attendant  upon 
the  execution  of  mineral  segregation  surveys  is  beyond  the  purpose  of 
these  regulations,  and  is  a  subject  properly  to  be  determined  by  the  Sur- 
veyor  General,    after   consideration   of   the   conditions   surrounding   the 
individual  case,  the  extent  of  the  required  operations  is  a  question  of  such 
importance,  as   affecting  not  only  the   actual   field  work  but   also   the 
method  to  be  adopted  for  the  subsequent  office  computations,  that  some 
comment  thereon  appears  desirable. 

(f)  As  a  preliminary  to  its  consideration,  however,  it  is  proper  to 
recognize  the  generally  accepted  principle  that  where  any  legal  subdivision 


520  LAND  OFFICE  EULES. 

of  the  public  domain  is  invaded  by  a  segregation  survey  the  former  loses 
its  identity  as  a  unit  of  disposal,  and  the  resultant  fractional  lots  must 
depend  for  their  area  upon  the  data  supplied  by  the  survey,  without 
reference  to  the  stated  area  of  the  subdivision.  This  principle,  while 
intrinsically  sound,  is  found  in  practice  to  result  in  a  refinement  of  little 
utility  when  applied  to  regular  sections  whose  closure  is  acceptable.  Its 
observance  is  therefore  frequently  ignored,  and  this  is  true,  in  particular, 
where  the  segregation  of  patent  mineral  surveys  is  concerned,  the  pro- 
cedure in  such  cases  being  merely  that  of  office  protraction  and  computa- 
tion from  the  assembled  mineral  and  township  records. 

(g)  The  extent  of  any  mineral  segregation  survey  is  dependent  pri- 
marily upon  the  condition  of  the  section  or  sections  invaded,  as  indicated 
by  the  actual  alinement  and  measurement  of  the  boundaries  thereof. 
With  this  fact  clearly  in  mind,  and  with  an  equal  recognition  of  the 
non-mineral  character  of  the  survey,  the  surveyor  will,  after  preliminary 
reconnaissance,  readily  determine  the  amount  of  field  work  required  in 
any  given  case.  It  frequently  happens  that  a  direct  connection  of  the 
mineral  location  by  a  tie  or  ties  to  convenient  existing  and  identified 
corners  of  the  public-land  survey,  followed  by  a  survey  of  the  out- 
boundaries  of  the  mining  claim  or  claims,  thus  presenting  data  equivalent 
to  those  supplied  by  a  patent  mineral  survey,  will,  with  the  subsequent 
office  protractions  for  area,  be  found  adequate  for  the  segregation,  but 
this  sufficiency  is  evident  only  when  the  section  invaded  is  itself  found 
to  be  actually  conformable,  within  Manual  limits,  to  the  record  thereof. 
In  many  other  cases  the  actual  condition  of  the  section  may  be  so  far 
removed  from  that  represented  by  the  record  that  it  would  be  impossible 
to  assert  even  approximate  accuracy  for  lot  areas  obtained  by  deducting 
the  acreage  of  the  mineral  land,  as  determined  by  the  survey,  from  the 
nominal  area  of  the  legal  subdivision  shown  upon  the  township  plat. 

(h)  It  is  therefore  apparent  that  the  first  duty  of  the  surveyor  is  to 
determine  by  retracement  the  actual  condition  of  the  section  invaded, 
and  provision  therefore  should  be  embodied,  in  future,  in  the  instructions 
of  the  Surveyor  General.  If  the  result  is  satisfactory,  and  a  reasonable 
agreement  with  the  approved  record  is  indicated,  he  may  then  proceed 
with  the  segregation  survey;  and  upon  evidence  of  proper  closure. the 
surveyor  general's  office  may  determine  the  resulting  lot  areas  by  protrac- 
tion and  deduction,  with  the  assurance  that  no  error  in  excess  of  allowable 
limits  has  been  introduced.  If,  on  the  other  hand,  the  retracement  reveals 
radical  defects  in  the  section,  and  serious  disagreement  with  the  record, 
it  will  be  necessary  for  the  surveyor  to  subdivide  the  section,  or  so  much 
thereof  as  is  invaded  by  the  mineral  claims,  restoring  any  lost  corners, 
and  locating  such  quarter-quarter-section  corners  as  are  required.  The 
segregation  survey  will  then  be  referable  strictly  to  the  conditions  so 
defined,  and  the  resultant  lot  areas  will  be  calculated  upon  the  basis  of  the 


LAND  OFFICE  KULES.  521 

f'ata  furnished  by  the  survey  and  not  by  reference  to  the  nominal  areas 
shown  upon  the  township  plat. 

(i)  Where,  however,  it  appears  upon  retracement  that  the  absence  of 
corners,  and  the  obliteration  of  other  evidences  of  the  original  public  land 
survey  is  so  general  as  to  require  extensive  restorations  and  a  search  for 
controlling  corners  remote  from  the  section  or  sections  affected  by  the 
segregation,  the  execution  of  which  would  impose  upon  the  entryman 
unreasonable  hardship  and  expense,  the  designated  surveyor  will  proceed 
only  with  the  survey  of  the  mineral  location  as  provided  in  subdivision  (g) 
hereof,  and  will,  upon  transmittal  of  his  returns  to  the  United  States 
Surveyor  General,  report  to  that  officer  the  conditions  which  precluded  his 
completion  of  the  survey.  Upon  receipt  of  such  report,  the  United  States 
Surveyor  General  will,  if  the  explanations  thus  submitted  are  acceptable, 
request  authority  from  the  General  Land  Office  to  employ  the  services  of 
an  United  States  surveyor  for  the  resurvey  and  subdivision  necessary  to 
complete  the  segregation  and  determine  the  true  condition  of  the  section 
or  sections  involved.  It  is  believed,  however,  that  the  necessity  for  this 
procedure  will  not  frequently  arise,  and  Surveyors  General  are  advised 
that  authority  for  such  action  will  issue  only  in  cases  that  are  clearly 
exceptional. 

(j)  Regarding  the  limit  of  error  applicable  to  segregation  "surveys,  it 
appears  illogical  to  demand  greater  accuracy  in  the  subdivision  than 
obtains  in  the  section  itself,  and  therefore  a  limit  of  one  part  in  640  in 
latitude  and  in  departure  may  be  adopted,  but  the  surveyor  should  strive 
to  reduce  the  error  in  closure  wherever  possible.  The  considerations  which 
require  great  precision  in  an  official  mineral  survey  are  not  present  in 
these  cases,  but  the  establishment  of  the  lines  and  corners  of  the  mineral 
location  should  be  attended  by  such  care  and  exactness  of  execution  that 
their  position  will  not  require  revision  by  the  patent  survey  which  may 
follow.  This  is  highly  important  for  the  reason  that  while  theoretically 
subject  to  such  revision,  the  result  in  practice  is  the  creation  of  small 
fractional  areas  of  questionable  utility  for  mining  operations,  and  yet 
excluded  from  the  agricultural  classification. 

(Ic)  Upon  completion  of  the  survey  and  the  receipt  by  the  Surveyor 
General's  office  of  the  returns  thereof,  he  will  cause  a  critical  examination 
to  be  made  with  reference  to  their  accuracy  and  sufficiency.  The  field 
notes  will  be  so  prepared  as  to  present,  first,  the  record  of  the  sectional 
retracement,  restoration,  and  subdivision;  second,  the  connection  of  the 
mineral  location  or  locations  therewith;  and,  finally,  the  record  of  the 
segregation  survey  proper,  the  latter  to  include  a  statement  of  the  area  of 
the  mineral  lands  eliminated  from  each  section.  All  measurements  will  be 
returned  in  chains  and  .links.  The  title  page  and  oaths  covering  the  notes 
will  be  of  the  regulation  township  form  (4 — 679,  4 — 680),  and  will  con- 
tain such  descriptive  matter  as  is  appropriate.  One  transcript  of  the 
whole  will  be  prepared  for  the  files  of  the  General  Land  Office. 


522  LAND  OFFICE  RULES. 

(I)  The  plat  of  survey  will  be  prepared  in  triplicate,  and  will  be  of 
standard  township  size.  It  will  exhibit  only  the  section  or  sections 
involved,  and  will  display  an  appropriate  title  and  certificate  of  approval. 
A  scale  of  10  or  20  chains  to  the  inch  is  suggested  as  convenient.  The 
plat  will  be  rendered  strictly  conformable  to  the  field  notes  of  the  survey 
and  will  present  all  essential  data  as  to  courses  and  distances  (true  lines) 
of  sectional  retracements  and  subdivision;  boundaries  of  the  mineral  loca- 
tion or  locations;  ties,  intersections,  etc.;  and  will  in  all  cases  afford 
information  sufficient  for  a  determination  of  the  areas  of  the  fractional 
lots  created. 

(m)  The  lots  in  question  will  be  designated  in  the  usual  manner  by 
consecutive  numbers,  beginning  with  that  next  higher  than  the  series  of 
the  previous  survey.  Their  areas  will  be  calculated  in  strict  conformity 
with  the  principles  heretofore  discussed;  that  is,  by  deduction  of  the 
returned  and  verified  mineral  area  (which  need  not  appear  upon  the  plat) 
from  the  nominal  area  of  the  legal  subdivision,  where  the  section  is  in 
reasonable  agreement  with  its  record  and  requires  no  field  subdivision,  or 
in  the  case  of  defective  sections,  by  balanced  traverses,  based  upon  the 
actual  field  returns  of  the  combined  subdivisional  and  segregation  surveys. 

(n)  Upon  completion  of  the  office  work  and  approval  of  the  survey  the 
duplicate  plat  and  transcript  of  field  notes  will  be  transmitted  to  the 
General  Land  Office  for  examination  and  acceptance. 

(o)  Inquiries  as  to  procedure  in  special  cases,  and  the  requests  for 
instructions  or  explanation  covering  minor  items  of  practice  not  herein 
noted,  should  be  addressed  to  the  Commissioner  of  the  General  Land 
Office  in  connection  with  the  specific  survey  to  which  they  are  referable. 

109.  Survey  Sworn  to. — Such  survey  when  executed  must 
be  properly  sworn  to  by  the  surveyor,  either  before  a  notary   public, 
United  States  Commissioner,  officer  of  a  Court  of  record,  or  before  the 
Register  or  Receiver,  the  deponent's  character  and  credibility  to  be  prop- 
erly certified  to  by  the  officer  administering  the  oath. 

110.  Verified  Plat  by  Surveyor  General.— Upon  the  filing 

of  the  plat  and  field  notes  of  such  survey,  duly  sworn  to  as  aforesaid, 
with  the  Surveyor  General,  for  his  verification  and  approval,  he  will,  if  he 
finds  the  work  correctly  performed,  approve  the  same,  sign  and  date  the 
approved  plats  and  field  notes,  and  thereupon  transmit  one  copy  of  the 
plat  and  field  notes  to  this  office  for  its  examination  and  acceptance. 
After  this  office  shall  have  examined  and  accepted  the  returns  of  such 
survey  and  the  plat  and  field  notes  thereof,  it  will  duly  notify  the 
Surveyor  General  of  its  examination  and  acceptance,  who  will  thereafter 
promptly  furnish  an  authenticated  copy  of  such  plat  to  the  proper  local 
land  office  for  filing  there. 


LAND  OFFICE  KULES.  523 

The  copy  of  plat  furnished  the  local  office  and  this  office  must  be  a 
diagram  verified  by  the  Surveyor  General,  showing  the  claim  or  claims 
segregated,  and  designating  the  separate  fractional  agricultural  tracts  in 
each  40-acre  legal  subdivision  by  the  proper  lot  number,  beginning  with 
No.  1  in  each  section,  and  giving  the  area  in  each  lot,  the  same  as  pro- 
vided in  paragraph  37  in  the  survey  of  mining  claims  on  surveyed  lands, 
and  paragraph  108,  subdivision  (m). 

111.  Decision  Does  Not  Award  Land. — The  fact  that  a 

certain  tract  of  land  is  decided  upon  testimony  to  be  mineral  in  character 
is  by  no  means  equivalent  to  an  award  of  the  land  to  a  miner.  In  order 
to  secure  a  patent  for  such  land,  he  must  proceed  as  in  other  cases,  in 
accordance  with  the  foregoing  regulations. 

Blank  forms  for  proofs  in  mineral  cases  are  not  furnished  by  the 
General  Land  Office. 

TEBEITORY  OF  ALASKA. 

112.  Rights  of  Canadians  in  Alaska. — Section  13,  Act  of 

May  14,  1898,  according  to  native-born  citizens  of  Canada  "the  same 
mining  rights  and  privileges"  in  the  Territory  of  Alaska  as  are  accorded 
to  citizens  of  the  United  States  in  British  Columbia  and  the  North- 
west Territory  by  the  laws  of  the  Dominion  of  Canada,  is  not  now  and 
never  has  been  operative,  for  the  reason  that  the  only  mining  rights  and 
privileges  granted  to  any  person  by  the  laws  of  t^he  Dominion  of  Canada 
are  those  of  leasing  mineral  lands  upon  the  payment  of  a  stated  royalty, 
and  the  mining  laws  of  the  United  States  make  no  provision  for  such 


113.  Regulations  in  Alaska. — For  the  sections  of  the  Act 

of  June  6,  1900,  making  further  provision  for  a  civil  government  for 
Alaska,  which  provide  for  the  establishment  of  recording  districts  and 
the  recording  of  mining  locations ;  for  the  making  of  rules  and  regulations 
by  the  miners  and  for  the  legalization  of  mining  records;  for  the  exten- 
sion of  the  mining  laws  to  the  Territory  of  Alaska,  and  for  the  explora- 
tion and  mining  of  tide  lands  and  lands  below  low  tide;  and  relating  to 
the  rights  of  Indians  and  persons  conducting  schools  or  missions,  see 
page  21  of  this  circular.  (On  p.  21  was  printed  the  A.  C.  referred  to.) 

MINERAL  LANDS  WITHIN  NATIONAL  FORESTS. 

114.  Mineral  Lands  Subject  to  Entry.— The  Act  of  June  4, 

1897,  provides  that  "any  mineral  lands  in  any  forest  reservation  which 
have  been  or  which  may  be  shown  to  be  such,  and  subject  to  entry  under 
the  existing  mining  laws  of  the  United  States  and  the  rules  and  regula- 
tions applying  thereto,  shall  continue  to  be  subject  to  such  location  and 
entry,"  notwithstanding  the  reservation.  This  makes  mineral  lands  in 


624  LAND  OFFICE  KULES. 

the  forest  reserves  subject  to  location  and  entry  under  the  general  mining 
laws  in  the  usual  manner. 

The  act  also  provides  that  ' '  The  Secretary  of  the  Interior  may  permit, 
under  regulations  to  be  prescribed  by  him,  the  use  of  timber  and  stone 
found  upon  such  reservations,  free  of  charge,  by  bona  fide  settlers,  miners, 
residents,  and  prospectors  for  minerals,  for  firewood,  fencing,  building, 
mining,  prospecting,  and  other  domestic  purposes,  as  may  be  needed  by 
such  persons  for  such  purposes;  such  timber  to  be  used  within  the 
State  or  Territory,  respectively,  where  such  reservations  may  be  located." 

TRANSFER  OF  NATIONAL  FORESTS. 

Act  of  February  1,  1905  (33  Stat.,  628). 

The  Secretary  of  the  Department  of  Agriculture  shall,  from  and  after 
the  passage  of  this  act,  execute  or  cause  to  be  executed  all  laws  affecting 
public  lands  heretofore  or  hereafter  reserved  under  the  provisions  of 
section  twenty-four  of  the  act  entitled  ' '  An  act  to  repeal  the  timber-culture 
laws,  and  for  other  purposes,"  approved  March  3,  1891,  and  acts  supple- 
mental to  and  amendatory  thereof,  after  such  lands  have  been  so  reserved, 
excepting  such  laws  as  affect  the  surveying,  prospecting,  locating,  appro- 
priating, entering,  relinquishing,  reconveying,  certifying,  or  patenting  of 
any  of  such  lands. 

(For  further  information  see  Use  Book — .Forest  Service.) 

SURVEYS  OF  MINING  CLAIMS. 

GENERAL  PROVISIONS. 

115.  Appointment    of    Surveyors. — Under    section    2334, 
Revised  Statutes,  the  United  States  Surveyor  General  "may  appoint  in 
each  land  district  containing  mineral  lands  as  many  competent  surveyors 
as  shall  apply  for  appointment  to  survey  mining  claims. ' ' 

116.  Persons  desiring  such  appointment  should  therefore 

file  their  applications  with  the  Surveyor  General  for  the  district  wherein 
appointment  is  asked,  who  will  furnish  all  information  necessary. 

117.  All  appointments  of  mineral  surveyors  must  be  sub- 
mitted to  the  Commissioner  of  the  General  Land  Office  for  approval. 

118.  Suspension    of    Surveyors. — The    surveyors    general 
have  authority  to  suspend  or  revoke  the  appointments  of  mineral  surveyors 
at  any  time,  for  cause,  and  to  suspend  or  revoke  the  appointments  at  such 
times  aa  the  bonds  become  subject  to  renewal  under  the  Act  of  March  2, 
1895  (28  Stat.,  808),  for  reasons  appearing  sufficient  to  sustain  a  refusal 
to  appoint  in  the  first  instance.    The  surveyors,  however,  will  be  allowed 
the  right  of  appeal  from  the  action  of  the  Surveyor  General  in  the  usual 
manner.    The  appeal  must  be  filed  with  the  Surveyor  General,  who  will  at 


LAND  OFFICE  RULES.  525 

once  transmit  the  same,  with  a  full  report,  to  the  General  Land  Office. 
(20  L.  D.,  283;  amendment  approved  July  29,  1911.) 

119.  [Omitted.] 

120.  Investigation   of  Surveyor's   Charges.— Neither  the 

Surveyor  General  nor  the  Commissioner  of  the  General  Land  Office  has 
jurisdiction  to  settle  differences  relative  to  the  payment  of  charges  for 
field  work,  between  mineral  surveyors  and  claimants.  These  are  matters 
of  private  contract  and  must  be  enforced  in  the  ordinary  manner — 
f.  e.,  in  the  local  Courts.  The  Department  has,  however,  authority  to 
investigate  charges  affecting  the  official  actions  of  mineral  surveyors, 
and  will,  on  sufficient  cause  shown,  suspend  or  revoke  their  appointment. 

121.  The  surveyors  general  should  appoint  as  many  com- 
petent mineral  surveyors  as  apply  for  appointment,  in  order  that  claim- 
ants may  have  a  choice  of  surveyors,  and  be  enabled  to  have  their  work 
done  on  the  most  advantageous  terms. 

122.  The  schedule  of  charges  for  office  work  should  be  as 

low  as  is  possible.  No  additional  charges  should  be  made  for  orders  for 
amended  surveys,  unless  the  necessity  therefor  is  clearly  the  fault  of  the 
claimant,  or  considerable  additional  office  work  results  therefrom. 

123.  [Omitted.] 

124.  Mineral  surveyors  will  address  all  official  communi- 
cations to  the  surveyor  general.    They  will,  when  a  mining 
claim  is  the  subject  of  correspondence,  give  the  name  and  survey  number. 
In  replying  to  letters  they  will  give  the  subject  matter  and  date  of  the 
letter.    They  will  promptly  notify  the  Surveyor  General  of  any  change  in 
post-office  address. 

125.  Mineral  surveyors  should  keep  a  complete  record  of 

each  survey  made  by  them  and  the  facts  coming  to  their  knowledge  at 
the  time,  as  well  as  copies  of  all  their  field  notes,  reports,  and  official 
correspondence,  in  order  that  such  evidence  may  be  readily  produced  when 
called  for  at  any  future  time.  Field  notes  and  other  reports  must  be 
written  in  a  clear  and  legible  hand  or  typewritten,  in  non-copying  ink, 
and  upon  the  proper  blanks  furnished  gratuitously  by  the  Surveyor  Gen- 
eral's office  upon  application  therefor.  No  interlineations  or  erasures  will 
be  allowed. 

126.  Return  of  Survey  by  Surveyor. — No  return  by  a  min- 
eral surveyor  will  be  recognized  as  official  unless  it  is  over  his  signature  aa 
a  United  States  mineral  surveyor,  and  made  in  pursuance  of  a  special 
order  from  the  Surveyor  General's  office.    After  he  has  received  an  order 
for  survey  he  is  required  to  make  the  survey  and  return  correct  field  notes 
thereof  to  the  Surveyor  General's  office  without  delay. 


526  LAND  OFFICE  RULES. 

127.  Claimants  Contract  With  Surveyor. — The  claimant  is 

required,  in  all  cases,  to  make  satisfactory  arrangements  with  the  surveyor 
for  the  payment  for  his  services  and  those  of  his  assistants  in  making  the 
survey,  as  the  United  States  will  not  be  held  responsible  for  the  same. 

128.  Surveyor  Not  Act  as  Attorney. — A  mineral  surveyor 

is  precluded  from  acting,  either  directly  or  indirectly,  as  attorney  in 
mineral  claims.  His  duty  in  any  particular  case  ceases  when  he  has 
executed  the  survey  and  returned  the  field  notes  and  preliminary  plat, 
with  his  report,  to  the  Surveyor  General.  He  will  not  be  allowed  to 
prepare  for  the  mining  claimant  the  papers  in  support  of  his  application 
for  patent,  or  otherwise  perform  the  duties  of  an  attorney  before  the  land 
office  in  connection  with  a  mining  claim.  He  is  not  permitted  to  combine 
the  duties  of  surveyor  and  notary  public  in  the  same  case  by  administering 
oaths  to  the  parties  in  interest.  It  is  preferable  that  both  preliminary 
and  final  oaths  of  assistants  should  be  taken  before  some  officer  duly 
authorized  to  administer  oaths,  other  than  the  mineral  surveyor.  In  cases, 
however,  where  great  delay,  expense,  or  inconvenience  would  result  from  a 
strict  compliance  with  this  rule,  the  mineral  surveyor  is  authorized  to 
administer  the  necessary  oaths  to  his  assistants,  but  in  each  case  where 
this  is  done,  he  will  submit  to  the  proper  Surveyor  General  a  full  written 
report  of  the  circumstances  which  required  his  stated  action;  otherwise 
he  must  have  absolutely  nothing  to  do  with  the  case,  except  in  his  official 
capacity  as  surveyor.  He  will  not  employ  chainmen  interested  therein  in 
any  manner. 

METHOD  OF  SURVEY. 

129.  Survey   Must   Be    Actual. — The    survey   made    and 

returned  must,  in  every  case,  be  an  actual  survey  on  the  ground  in  full 
detail,  made  by  the  mineral  surveyor  in  person  after  the  receipt  of  the 
order,  and  without  reference  to  any  knowledge  he  may  have  previously 
acquired  by  reason  of  having  made  the  location  survey  or  otherwise,  and 
must  show  the  actual  facts  existing  at  the  time.  This  precludes  him  from 
calculating  the  connections  to  corners  of  the  public  survey  and  location 
monuments,  or  any  other  lines  of  his  survey  through  prior  surveys  made 
by  others  and  substituting  the  same  for  connections  or  lines  of  the  survey 
returned  by  him.  The  term  survey  in  this  paragraph  applies  not  only  to 
the  usual  field  work,  but  also  to  the  examinations  required  for  the  prepara- 
tion of  affidavits  of  five  hundred  dollars  expenditure,  descriptive  reports 
on  placer  claims,  and  all  other  reports. 

130.  Survey  of  Contiguous  Locations. — The  survey  of  a 

mining  claim  may  consist  of  several  contiguous  locations,  but  such  survey 
must,  in  conformity  with  statutory  requirements,  distinguish  the  several 
locations,  and  exhibit  the  boundaries  of  each.  The  survey  will  be  given 
but  one  number. 


LAND  OFFICE  RULES.  527 

131.  Difference  in  Lines  of  Survey  and  Location. — The 

survey  must  be  made  In  strict  conformity  with,  or  be  embraced  within, 
the  lines  of  the  location  upon  which  the  order  is  based.  If  the  survey 
and  location  are  identical,  that  fact  must  be  clearly  and  distinctly  stated 
in  the  field  notes.  If  not  identical,  a  bearing  and  distance  must  be  given 
from  each  established  corner  of  survey  to  the  corresponding  corner  of  the 
location,  and  the  location  corner  must  be  fully  described,  so  that  it  can 
be  identified.  The  lines  of  the  location,  as  found  upon  the  ground,  must 
be  laid  down  upon  the  preliminary  plat  in  such  a  manner  as  to  contrast 
and  show  their  relation  to  the  lines  of  survey. 

132.  Corners  Not  to  Be  Changed. — In  view  of  the  princi- 
ple that  courses  and  distances  must  give  way  when  in  conflict  with  fixed 
objects  and  monuments,  the  surveyor  will  not,  under  any  circumstances, 
change   the   corners   of   the   location  for  the   purpose   of   making   them 
conform  to  the  description  in  the  record.     If  the  difference  from  the 
location  be  slight,  it  may  be  explained  in  the  field  notes. 

133.  Length  and  Width. — No  mining  claim  located  subse- 
quent to  May  10,  1872,  should  exceed  the  statutory  limit  in  width  on  each 
side,  of  the  center  of  vein  or  1,500  feet  in  length,  and  all  surveys  must 
close  within  50-100  feet  in  1,000  feet,  and  the  error  must  not  be  such  as 
to  make  the  location  exceed  the  statutory  limit,  and  in  absence  of  other 
proof  the  discovery  point  is  held  to  be  the  center  of  the  vein  on  the 
surface.     The  course  and  length  of  the  vein  should  be  marked  upon  the 
plat. 

134.  All  mineral  surveys  must  be  made  with  a  transit, 

with  or  without  solar  attachment,  by  which  the  meridian  can  be  deter- 
mined independently  of  the  magnetic  needle,  and  all  courses  must  be 
referred  to  the  true  meridian.  The  variation  should  be  noted  at  each 
corner  of  the  survey.  The  true  course  of  at  least  one  line  of  each  survey 
must  be  ascertained  by  astronomical  observations  made  at  the  time  of  the 
survey;  the  data  for  determining  the  same  and  details  as  to  how  these 
data  were  arrived  at  must  be  given.  Or,  in  lieu  of  the  foregoing,  the 
survey  must  be  connected  with  some  line  the  true  course  of  which  has  been 
previously  established  beyond  question,  and  in  a  similar  manner,  and, 
when  such  lines  exist,  it  is  desirable  in  all  cases  that  they  should  be  used 
as  a  proof  of  the  accuracy  of  subsequent  work. 

*135.  Ties  to  Public  Survey. — Corner  No.  1  of  each  location 

embraced  in  a  survey  must  be  connected  by  course  and  distance  with 
nearest  corner  of  the  public  survey  or  with  a  United  States  location 
monument,  if  the  claim  lies  within  two  miles  of  such  corner  or  monument. 


•Each  lode  claim  in  a  group  must  be  tied  to  a  government  corner. 
—42  L.  D.  485. 


528  LAND  OFFICE  RULES. 

If  both  are  within  the  required  distance,  the  connection  must  be  with  the 
corner  of  the  public  survey. 

136.  Mineral  Monuments  in  Suspended  Township. — Sur- 
veys and  connections  of  mineral  claims  may  be  made  in  suspended  town- 
ships in  the  same  manner  as  though  the  claims  were  upon  unsurveyed 
land,  except  as  hereinafter  specified,  by  connecting  them  with  independent 
mineral  monuments.     At  the  same  time,  the  position  of  any  public-land 
corner  which  may  be  found  in  the  neighborhood  of  the  claim  should  be 
noted,  so  that,  in  case  of  the  release  of  the  township  from  suspension,  the 
position  of  the  claim  can  be  shown  on  the  plat. 

137.  No  Choice  of  Tie. — A  mineral  survey  must  not  be 
returned  with  its  connection  made  only  with  a  corner  of  the  public  survey, 
where  the  survey  of  the  township  within  which  it  is  situated  is  under 
suspension,  nor  connected  with  a  mineral  monument  alone,  when  situated 
within  the  limits  of  a  township  the  regularity  and  correctness  of  the 
survey  of  which  is  unquestioned. 

138.  Establishing  Corner  No.  1. — In  making  an  official  sur- 
vey, corner  No.  1  of  each  location  must  be  established  at  the  corner 
nearest  the  corner  of  the  public  survey  or  location  monument,  unless  good 
cause  is  shown  for  its  being  placed  otherwise.     If  connections  are  given 
to  both  a  corner  of  the  public  survey  and  location  monument,  corners 
Nos.  1  should  be  placed  at  the  corner  nearest  the  corner  of  the  public 
survey.    When  a  boundary  line  of  a  claim  intersects  a  section  line,  courses 
and  distances  from. point  of  intersection  to  the  government  corners  at 
each  end  of  the  half  mile  of  section  line  so  intersected  must  be  given. 

139.  Erection  of  Mineral  Monuments. — In  case  a  survey  is 

situated  in  a  district  where  there  are  no  corners  of  the  public  survey  and 
no  monuments  within  the  prescribed  limits,  a  mineral  monument  must  be 
established,  in  the  location  of  which  the  greatest  care  must  be  exercised 
to  insure  permanency  as  to  site  and  construction.  (See,  also,  provisions 
of  par.  396.) 

140.  Selection  of  Site. — The  site,  when  practicable,  should 

be  some  prominent  point,  visible  for  a  long  distance  from  every  direction, 
and  should  be  so  chosen  that  the  permanency  of  the  monument  will  not 
be  endangered  by  snow,  rock,  or  landslides,  or  other  natural  causes. 

141.  Dimensions   and   Marking. — The   monument   should 

consist  of  a  stone  not  less  than  30  inches  long,  20  inches  wide,  and  6  inches 
thick,  set  halfway  in  the  ground,  with  a  conical  mound  of  stone  4  feet 
high  and  6  feet  base  alongside.  The  letters  U.  S.  L.  M.,  followed  by  the 
consecutive  number  of  the  monument  in  the  district,  must  be  plainly 
chiseled  upon  the  stone.  If  impracticable  to  obtain  a  stone  of  required 
dimensions,  then  a  post  8  feet  long,  6  inches  square,  set  3  feet  in  the 


LAND  OFFICE  KULES.  529 

ground,  scribed  as  for  a  stone  monument,  protected  by  a  well-built  conical 
mound  of  stone  of  not  less  than  3  feet  high  and  6  feet  base  around  it, 
may  be  used.  The  exact  point  for  connection  must  be  indicated  on  the 
monument  by  an  X  chiseled  thereon;  if  a  post  is  used,  then  a  tack  must 
be  driven  into  the  post  to  indicate  the  point. 

142.  Ties  to  Monument. — From  the  monument,   connec- 
tions by  course  and  distance  must  be  taken  to  two  or  three  bearing  trees 
or  rocks,  and  to  any  well-known  and  permanent  objects  in  the  vicinity, 
such  as  the  confluence  of  streams,  prominent  rocks,  buildings,  shafts,  or 
mouths  of  adits.    Bearing  trees  must  be  properly  scribed  B.  T.  and  bear- 
ing  rocks   chiseled   B.   B.,   together   with    the   number    of    the   location 
monument;  the  exact  point  on  the  tree  or  stone  to  which  the  connection  is 
taken  should  be  indicated  by  a  cross  or  other  unmistakable  mark.    Bear- 
ings should  also  be  taken  to  prominent  mountain  peaks,  and  the  approxi- 
mate distance  and  direction  ascertained  from  the  nearest  town  or  mining 
camp.      A    detailed    description    of    the    locating     monument,     with     a 
topographical  map  of  its  location,  should  be  furnished  the  ofiice  of  the 
Surveyor  General  by  the  surveyor. 

143.  Corners  may  consist  of — 

First — A  stone  at  least  24  inches  long  set  12  inches  in  the  ground, 
with  a  conical  mound  of  stone  l1/^  feet  high,  2  feet  base,  alongside. 

Second — A  post  at  least  3  feet  long  by  4  inches  square,  set  18  inches 
in  the  ground  and  surrounded  by  a  substantial  mound  of  stone  or  earth. 

Third — A  rock  in  place. 

A  stone  should  always  be  used  for  a  corner  when  possible,  and  when 
so  used  the  kind  should  be  stated. 

144.  Marking  Corners. — All  corners  must  be  established  in 

a  permanent  and  workmanlike  manner,  and  the  corner  and  survey  number 
must  be  neatly  chiseled  or  scribed  on  the  sides  facing  the  claim.  The 
exact  corner  point  must  be  permanently  indicated  on  the  corner.  When 
a  rock  in  place  is  used,  its  dimensions  above  ground  must  be  stated  and 
a  cross  chiseled  at  the  exact  corner  point. 

145.  Witness  Corners. — In  case  the  point  for  the  corner  be 

inaccessible  or  unsuitable  a  witness  corner,  which  must  be  marked  with 
the  letters  W.  C.  in  addition  to  the  corner  and  survey  number,  should  be 
established.  The  witness  corner  should  be  located  upon  a  line  of  the 
survey  and  as  near  as  possible  to  the  true  corner,  with  which  it  must  be 
connected  by  course  and  distance.  The  reason  why  it  is  impossible  or 
impracticable  to  establish  the  true  corner  must  always  be  stated  in  the 
field  notes,  and  in  running  the  next  course  it  should  be  stated  whether  the 
start  is  made  from  the  true  place  for  corner  or  from  witness  corner. 


530  LAND  OFFICE  EULES. 

146.  Perpetuating  Corners. — The  identity  of  all  corners 

should  be  perpetuated  by  taking  courses  and  distances  to  bearing  trees, 
rocks,  and  other  objects,  as  prescribed  in  the  establishment  of  location 
monuments,  and  when  no  bearings  are  given  it  should  be  stated  that  no 
bearings  are  available.  Permanent  objects  should  be  selected  for  bearings 
whenever  possible. 

147.  Tying  to  Official  Survey. — If  an  official  mineral  sur- 
vey has  been  made  in  the  vicinity,  within  a  reasonable  -distance,  a  further 
connecting  line  should  be  run  to  some  corner  thereof ;  and  in  like  manner 
all  conflicting  surveys  and  locations  should  be  so  connected,  and  the  corner 
with  which,  connection  is  made  in  each  case  described.     Such  connections 
will  be  made  and  conflicts  shown  according  to  the  boundaries   of   the 
neighboring  or  conflicting  claims  as  each  is  marked,  defined,  and  actually 
established  upon  the  ground.     The  mineral  surveyor  will  fully  and  spe- 
cifically state  in  his  return  how  and  by  what  visible  evidences  he  was  able 
to  identify  on  the  ground  the  several  conflicting  surveys  and  those  which 
appear  according  to  their  returned  tie  or  boundary  lines  to  conflict,  if 
they  were  so  identified,  and  report  errors  or  discrepancies  found  by  him 
in  any  such  surveys.    In  the  survey  of  contiguous  claims  which  constitute 
a  consolidated  group,  where  corners  are  common,  bearings  should  be  men- 
tioned but  once. 

148.  Topography. — The    mineral    surveyor    should    note 
carefully  all  topographical  features  of  the  claim,  taking  distances  on  his 
lines  to  intersections  with  all  streams,  gulches,  ditches,  ravines,  mountain 
ridges,  roads,  trails,  etc.,  with  their  widths,  courses,  and  other  data  that 
may  be  required  to  map  them  correctly.    All  municipal  or  private  improve- 
ments, such  as  blocks,  streets,  and  buildings,  should  be  located. 

149.  Conflicts  With  Other  Surveys. — If,  in  running  the 
exterior  lines  of  a  claim,  the  survey  is  found  to  conflict  with  the  survey 
of  another  claim,  the  distances  to  the  points  of  intersection,  and  the 
courses  and  distances  along  the  line  intersected  from  an  established  corner 
of  such  conflicting  claim  to  such  points  of  intersection,  should  be  described 
in  the  field  notes :   Provided,  That  where  a  corner  of  the  conflicting  survey 
falls  within  the  claim  being  surveyed,  such  corner  should  be  selected  from 
which  to  give  the  bearing,  otherwise  the  corner  nearest  the  intersection 
should  be  taken.     The  same  rule  should  govern  in  the  survey  of  claims 
embracing  two  or  more  locations  the  lines  of  which  intersect. 

150.  A  lode  and  mill  site  claim  in  one  survey  will  be  dis- 
tinguished by  the  letters  A  and  B  following  the  number  of  the  survey. 
The  corners  of  the  mill  site  will  be  numbered  independently  of  those  of 
the  lode.     Corner  No.  1  of  the  mill  site  must  be  connected  with  a  corner 
of  the  lode  claim  as  well  as  with  a  corner  of  the  public  survey  or  United 
States  location  monument. 


»  LA;ND  OFFICE  EULES.  531 

151.  Corners  of  Each  Claim  Separately  Numbered. — When 

a  placer  claim  includes  lodes,  or  when  several  contiguous  placer  or  loda 
locations  are  included  as  one  claim  in  one  survey,  there  must  be  given 
to  the  corners  of  each  location  constituting  the  same  a  separate  consecu- 
tive numerical  designation,  beginning  with  corner  No.  1  in  each  case. 

152.  Description  Must  Give  Names  of  Claims. — Through- 
out the  description  of  the  survey,  after  each  reference  to  the  lines  or 
corners  of  a  location,  the  name  thereof  must  be  given,  and  if  unsurveyed, 
the  fact  stated.     If  reference  is  made  to  a  location  included  in  a  prior 
official  survey,  the  survey  number  must  be  given,  followed  by  the  name  of 
the  location.    Corners  should  be  described  once  only. 

153.  Areas  to  Be  Stated. — The  total  area  of  each  location 

and  also  the  area  in  conflict  with  each  intersecting  survey  or  claim  should 
be  stated.  But  when  locations  embraced  in  one  survey  conflict  with  each 
other  such  conflicts  should  only  be  stated  in  connection  with  the  location 
from  which  the  conflicting  area  is  excluded. 

154.  Show  Section,  Township  and  Range. — It  should  be 

stated  particularly  whether  the  claim  is  upon  surveyed  or  unsurveyed 
public  lands,  giving  in  the  former  case  the  quarter  section,  township,  and 
range  in  which  it  is  located,  and  the  section  lines  should  be  indicated  by 
full  lines  and  the  quarter-section  lines  by  dotted  lines. 

155.  Address  of  Claimant.— The  title  page  of  the  field 

notes  must  contain  the  post-office  address  of  the  claimant  or  his  authorized 
agent. 

156.  Report  of  Expenditures. — In  the  mineral  surveyor's 

report  of  the  value  of  the  improvements  all  actual  expenditures  and 
mining  improvements .  made  by  the  claimant  or  his  grantors,  having  a 
direct  relation  to  the  development  of  the  claim,  must  be  included  in  the 
estimate. 

157.  What    Improvements    Excluded. — The    expenditures 

required  may  be  made  from  the  surface  or  in  running  a  tunnel,  drifts,  or 
cross-cuts  for  the  development  of  the  claim.  Expenditures  for  drill  holes 
for  the  purpose  of  prospecting  and  securing  data  upon  which  further 
development  of  a  group  of  lode  mining  claims  held  in  common  may  be 
based  are  available  toward  meeting  the  statutory  provision  requiring  an 
expenditure  of  five  hundred  dollars  as  a  basis  for  patent  as  to  all  of  the 
claims  of  the  group  situated  in  close  proximity  to  such  common  improve- 
ment. Improvements  of  any  other  character,  such  as  buildings,  machinery, 
or  roadways,  must  be  excluded  from  the  estimate,  unless  it  is  shown 
clearly  that  they  are  associated  with  actual  excavations,  such  as  cuts, 
tunnels,  shafts,  etc.,  are  essential  to  the  practical  development  of  and 
actually  facilitate  the  extraction  of  mineral  from  the  claim. 


532  LAND  OFFICE  RULES.  , 

158.  Ties — Abandoned    Improvements. — All    mining    and 

other  improvements  claimed  will  be  located  by  courses  and  distances  from 
corners  of  the  survey,  or  from  points  on  the  center  or  side  lines,  specify- 
ing with  particularity  and  detail  the  dimensions  and  character  of  each, 
and  the  improvements  upon  each  location  should  be  numbered  consecu- 
tively, the  point  of  discovery  being  always  No.  1.  Improvements  made 
by  a  former  locator  who  has  abandoned  his  claim  can  not  be  included  in 
the  estimate,  but  should  be  described  and  located  in  the  notes  and  plat. 

159.  In  case  of  a  lode  and  mill  site  claim  in  the  same  sur- 
vey the  expenditure  of  five  hundred  dollars  must  be  shown  upon  the  lode 
claim. 

160.  Expenditure  During  Publication. — If  the  value  of  the 

labor  and  improvements  upon  a  mineral  claim  is  less  than  five  hundred 
dollars  at  the  time  of  survey  the  mineral  surveyor  may  file  with  the 
Surveyor  General  supplemental  proof  showing  five  hundred  dollars 
expenditure  made  prior  to  the  expiration  of  the  period  of  publication. 

161.  Preliminary  Plat. — The  mineral  surveyor  will  return 
with  his  field  notes  a  preliminary  plat  on  blank  sent  to  him  for  that 
purpose,  protracted  on  a  scale  of  two  hundred  feet  to  an  inch,  if  prac- 
ticable.    In  preparing  plats  the  top  is  north.     Copy  of  the  calculations 
of  areas  by  double  meridian  distances  and  of  all  triangulations  or  traverse 
lines  must  be  furnished.     The  lines   of  the  claim  surveyed  should  be 
heavier  than  the  lines  of  conflicting  claims. 

162.  Errors — Joint  Survey. — Whenever  a  survey  has  been 

reported  in  error  the  surveyor  may,  in  the  discretion  of  the  Surveyor 
General,  be  required  promptly  to  make  a  thorough  examination  upon  the 
premises  and  report  the  result,  under  oath,  to  the  Surveyor  General's 
office.  In  case  he  finds  his  survey  in  error  he  will  report  in  detail  all 
discrepancies  with  the  original  survey  and  submit  any  explanation  he 
may  have  to  offer  as  to  the  cause.  If,  on  the  contrary,  he  should  report 
his  survey  correct,  the  Surveyor  General  will,  if  necessary,  order  a  joint 
survey  to  settle  the  differences  with  the  surveyor  who  reported  the  error. 
A  joint  survey  must  be  made  within  ten  days  after  the  date  of  order, 
unless  satisfactory  reasons  are  submitted,  under  oath,  for  a  postponement. 
The  field  work  must  in  every  sense  of  the  term  be  a  joint  survey,  and  not 
a  separate  survey,  and  the  observations  and  measurements  taken  with  the 
same  instrument  and  chain,  previously  tested  and  agreed  upon. 

Nothing  contained  in  the  foregoing  paragraph  shall  be  construed  as 
intending  to  invest  Surveyors  General  with  jurisdiction  to  try  and  deter- 
mine purely  adverse  claims  to  mining  ground,  and  the  procedure  herein 
prescribed  shall  not  be  resorted  to  in  any  case  where  it  is  apparent  that 
the  controversy  is  not  one  concerning  the  professional  efficiency  of  the 


LAND  OFFICE  RULES.  533 

surveyor,  or  the  accuracy  of  results  achieved  by  the  methods  employed  by 
him  in  the  execution  of  the  survey,  but  relates  substantially  to  the  relative 
merits  of  rival  claims  to  the  same  parcel  of  ground. 

163.  Field  Notes  of  Joint  Survey. — The  mineral  surveyor 

found  in  error,  or,  if  both  are  in  error,  the  one  who  reported  the  same, 
will  make  out  the  field  notes  of  the  joint  survey,  which,  after  being  duly 
signed  and  sworn  to  by  both  parties,  must  be  transmitted  to  the  Surveyor 
General's  office. 

164.  Amended    Surveys — Costs. — Inasmuch    as    amended 

surveys  are  ordered  only  by  special  instructions  from  the  General  Land 
Office,  and  the  conditions  and  circumstances  peculiar  to  each  separate  case 
and  the  object  sought  by  the  required  amendment,  alone  govern  all  special 
matters  relative  to  the  manner  of  making  such  survey  and  the  form  and 
subject  matter  to  be  embraced  in  the  field  notes  thereof,  but  few  general 
rules  applicable  to  all  cases  can  be  laid  down. 

The  expense  of  amended  surveys,  including  amendment  of  plat  and 
field  notes,  and  office  work  in  the  Surveyor  General's  office  will  be  borne 
by  the  claimant. 

165.  The  amended  survey  must  be  made  in  strict  conform- 
ity with,  or  be  embraced  within,  the  lines  of  the  original  survey.     If  the 
amended  and  original  surveys  are  identical,  that  fact  must  be  clearly  and 
distinctly  stated  in  the  field  notes.     If  not  identical,  a  bearing  and  dis- 
tance must  be  given  from  each  established  corner  of  the  amended  survey 
to  the  corresponding  corner  of  the  original  survey.     The  lines  of  the 
original  survey,  as  found  upon  the  ground,  must  be  laid  down  upon  the 
preliminary  plat  in  such  manner  as  to  contrast  and  show  their  relation  to 
the  lines  of  the  amended  survey. 

166.  The  field  notes  of  the  amended  survey  must  be  pre- 
pared on  the  same  size  and  form  of  blanks  as  are  the  field  notes  of  the 
original  survey,  and  the  word  "amended"  must  be  used  before  the  word 
"survey"  wherever  it  occurs  in  the  field  notes. 

167.  Descriptive  Report  on  Placers. — Mineral  surveyors 

are  required  to  make  full  examinations  of  all  placer  claims  at  the  time  of 
survey  and  file  with  the  field  notes  a  descriptive  report,  in  which  will  be 
described — 

(a)  The  quality  and  composition  of  the  soil,  and  the  kind  and  amount 
of  timber  and  other  vegetation. 

(b)  The   locus  and  size  of  streams,  and  such  other  matter  as  may 
appear  upon  the  surface  of  the  claims. 

(c)  The  character  and  extent  of  all  surface  and  underground  workings, 
whether  placer  or  lode,  for  mining  purposes,  locating  and  describing  them. 


534  LAND  OFFICE  KULE3. 

(d)  The  proximity  of  centers  of  trade  or  residence. 

(e)  The  proximity  of  well-known  systems  of  lode  deposits  or  of  indi- 
ridual  lodes. 

(f)  The  use  or  adaptability   of  the  claim   for  placer  mining,   and 
whether  water  has  been  brought  upon  it  in  sufficient  quantity  to  mine  the 
same,  or  whether  it  can  be  procured  for  that  purpose. 

(g)  What  works  or  expenditures  have  been  made  by  the  claimant  or  his 
grantors  for  the  development  of  the  claim,  and  their  situation  and  loca- 
tion with  respect  to  the  same  as  applied  for. 

(h)  The  true  situation  of  all  mines,  salt  licks,  salt  springs,  and  mill 
sites  which  come  to  the  surveyor 's  knowledge,  or  a  report  by  him  that  none 
exist  on  the  claim,  as  the  facts  may  warrant. 

(i)  Said  report  must  be  made  under  oath  and  duly  corroborated  by 
one  or  more  disinterested  persons. 

168.  The  employing  of  claimants,  their  attorneys,  or  par- 
ties in  interest,  as  assistants  in  making  surveys  of  mineral  claims  will  not 
be  allowed. 

169.  The  field  work  must  be  accurately  and  properly  per- 
formed and  returns  made  in  conformity  with  the  foregoing 
instructions.     Errors  in  the  survey  must  be  corrected  at  the  surveyor's 
own  expense,  and  if  the  time  required  in  the  examination  of  the  returns 
is  increased  by  reason  of  neglect  or  carelessness,  he  will  be  required  to 
make  an  additional  deposit  for  office  work.     He  will  be  held  to  a  strict 
accountability  for  the  faithful  discharge  of  his  duties,  and  will  be  required 
to  observe  fully  the  requirements  and  regulations  in  force  as  to  making 
mineral  surveys.     If  found  incompetent  as  a  surveyor,  careless  in  the 
discharge  of  his  duties,  or  guilty  of  a  violation  of  said  regulations,  his 
appointment  will  be  promptly  revoked. 

CLAY  TALLMAN,  Commissioner. 
Approved: 

ANDRIEUS  A.  JONES, 

First  Assistant  Secretary. 


CIRCULAR  TO  APPLICANTS.  535 

*CIRCULAR  TO  APPLICANTS. 


Applicants  for  Mineral  Survey  Orders  will  observe  the  following 
requirements  in  the  conduct  of  their  business  with  the  Surveyor  General 's 
Office,  the  same  being  based  upon  the  United  States  mining  laws  and 
circular  and  special  instructions  from  the  Commissioner  of  the  General 
Land  Office: 

1.  All  applications  for  survey  orders,  descriptive  reports  on  placer 
claims,    or   certificates   of   five   hundred   dollars    expenditure,    should    be 
addressed  to  the  Surveyor  General  and  be  signed  by  the  claimants,  their 
agents  or  attorney. 

2.  Each  application  should  contain: 

(a)  The  name  of  the  claimant  in  full,  and  as  it  is  desired  to  appear 
in  the  application  for  patent. 

(6)     The  name  of  each  location  embraced  in  the  claim. 

(c)  The  name  of  the  land  and  mining  districts  in  which  the  claim  is 
located. 

(d)  The  name  of  the  mineral  surveyor  to  whom  it  is  desired  the 
order  shall  be  issued. 

3.  The  applicant  is  required  to  file  with  each  application  for  survey 
order,  a  copy  of  the  record  of  location  of  the  claim,  properly  certified 
by  the  recorder  of  the  county  or  mining  district  where  the  claim  is  sit- 
uate. 

4.  The  mineral  surveyor  is  required  to  survey  the  claim  in  strict  con- 
formity with  or  within  the  lines  of  the  location  upon  which  the  order  of 
survey  is  based.    The  applicant  is  therefore  advised,  before  filing  his 
application,  to  see  that  his  location  has  been  made  in  compliance  with 
the  law  and  regulations,  and  that  it  properly  describes  the  claim  for 
which  patent  is  to  be  sought. 

Section  2324,  United  States  Revised  Statutes,  expressly  provides  that 
"the  location  must  be  distinctly  marked  on  the  ground,  so  that  its 
boundaries  can  be  readily  traced,"  and  that  "all  records  of  mining 
claims  hereafter  made  shall  contain  the  name  or  names  of  the  locators, 


*NoTE. — This  circular  is  part  of  the  "Manual  of  Instructions  for  the 
Survey  of  the  Mineral  Lands  of  the  United  States,"  issued  October  6, 
1908.  The  Manual  contains,  also,  instructions  to  surveyors  as  to  the 
methods  of  obtaining  a  true  meridian.  Appendix  C  contains  forms  in 
use  in  the  Surveyor  General's  office,  which  forms  are  found  in  this  com- 
pilation, under  the  heading  of  APPLICATION  FOR  PATENT.  The  Manual  is 
prepared  for  the  use  of  surveyors  and  is  furnished  to  them  by  the  Sur- 
veyor General's  office. 


536  CIRCULAR  TO  APPLICANTS. 

the  date  of  the  location,  and  such  a  description  of  the  claim  or  claims, 
located  by  reference  to  some  natural  object  or  permanent  monument,  aa 
will  identify  the  claim." 

These  provisions  of  the  law  must  be  strictly  complied  with  in  each 
case  to  entitle  a  claimant  to  a  survey  and  patent,  and  therefore  should  a 
claimant  under  a  location  made  subsequent  to  the  passage  of  the  mining 
act  of  May  10,  1872  (referred  to  in  said  Section  2324),  who  has  not  com- 
plied with  said  requirements  in  regard  to  marking  the  location  upon  the 
ground,  and  recording  the  same,  apply  for  a  survey,  the  surveyor  general 
will  decline  to  order  it. 

The  only  relief  for  a  party  under  such  circumstances  will  be  to  make 
a  new  location  in  conformity  to  law  and  regulations,  as  no  survey  will  be 
approved  by  the  surveyor  general's  office  unless  these  and  all  other  pro- 
visions of  law  are  substantially  complied  with. 

A  lode  locator  may  not,  in  the  same  location,  lawfully  include  any 
surface  area,  or  acquire  any  incidental  mining  rights  therein,  outside  of 
the  course  of,  or  vertical  planes  drawn  downward  through,  the  estab- 
lished end  lines  of  his  claim  extended  in  their  own  direction.  (35  L.  D. 
592.) 

5.  The  surveyor  general  will  furnish  the  applicant  an  estimate  of  the 
cost  of  platting  and  other  office  work  connected  with  the  survey  in  his 
office,  which  amount  the  applicant  will  deposit  with  any  assistant  United 
States  treasurer,  or  designated  depository,  in  favor  of  the  United  States 
Treasurer,  to  be  passed  to  the  credit  of  the  fund  created  by  "individual 
depositors  for  surveys  of  the  public  lands."     The  duplicate  certificate 
issued  for  such  deposit  will  be  immediately  forwarded  to  the  office  of  the 
surveyor  general  by  the  applicant,  who  will  retain  the  triplicate  certificate 
for  his  own  use  and  security.     Under  no  circumstances  can  this  deposit 
be  made  with  or  by  the  surveyor  general. 

Payment  for  exemplified  copies  of  plats  or  other  records  in  the  office 
of  the  surveyor  general  will  be  made  or  remitted  directly  to  that  officer, 
who  will  promptly  receipt  for  the  same.  (36  L.  D.  125.) 

6.  The  various  surveyors  general  have  schedules  of  rates  for  office 
work,  and  an  estimate  of  the  cost  in  any  particular  case  may  be  had 
upon  application. 

Should  an  applicant  deem  an  estimate  excessive,  he  will  be  allowed  th» 
right  of  appeal  to  the  General  Land  Office  in  the  usual  manner. 

In  transmitting  such  an  appeal  the  Surveyor  General  should  transmit 
therewith  a  full  report. 

7.  An  application  for  an  amended  survey  order  must  be  accompanied 
with  a  statement  setting  forth  fully  the  reasons  for  the  proposed  amend- 
ment and  all  the  material  facts  in  the  matter. 


CIECULAB  TO  APPLICANTS.  537 

8.  If,  after  having  obtained  a  survey  order,   the  applicant  should 
abandon  his  purpose  of  xhaving  a  survey  made,  he  can  apply  the  deposit, 
less  the  amount  estimated  for  office  expenses  already  incurred,  on  a  survey 
of  another  claim  if  one  is  desired. 

9.  Upon  discovery  of  any  error  or  defect  in  an  order  the  applicant  is 
requested  to  return  it  to  the  Surveyor  General's  office  for  correction  or 
amendment. 

10.  If,   after  having   obtained  an   order  for   survey,   the   applicant 
should  find  that  the  record  of  location  does  not  practically  describe  the 
location  as  staked  upon  the  ground,  he  should  file  a  certified  copy  of  an 
amended  location  certificate,  correctly  describing  the  claim,  and  obtain  an 
amended  order  for  survey.     (29  L.  D.  718.) 

11.  The  order  of  approval  of  surveys  of  mineral  claims  is  prescribed 
by  General  Land  Office  circular  dated  March  3,  1881,  as  follows: 

The  mining  survey  first  applied  for  shall  have  the  priority  of  action  in 
all  its  stages  in  the  office  of  the  Surveyor  General,  including  the  delivery 
thereof,  over  any  other  survey  of  the  same  ground  or  any  portion  thereof. 

The  Surveyor  General  should  not  order  or  authorize  a  survey  of  a 
claim  which  conflicts  with  one  previously  applied  for  until  the  survey 
first  applied  for  has  been  completed,  examined,  approved  and  platted,  and 
the  plats  delivered,  unless  the  survey  first  authorized  is  not  returned 
within  a  reasonable  period,  and  the  applicant  for  a  conflicting  survey 
makes  affidavit  that  he  believes  (stating  the  reasons  for  his  belief)  that 
such  first  applicant  has  abandoned  his  purpose  of  having  a  survey  made, 
or  is  deferring  it  for  vexatious  purposes,  to-wit,  to  postpone  the  subse- 
quent applicant,  in  which  case  the  Surveyor  General  shall  give  notice  of 
such  charges  to  such  first  applicant,  and  call  upon  him  for  an  explanation 
under  oath  of  the  delay.  He  shall  also  require  the  mineral  surveyor  to 
make  a  full  statement  in  writing,  explanatory  of  the  delay;  and  if  the 
Surveyor  General  shall  conclude  that  good  and  sufficient  reasons  for  such 
delay  do  not  exist,  he  shall  authorize  the  applicant  for  the  conflicting 
survey  to  proceed  with  the  same;  otherwise  the  order  of  proceedings  shall 
not  be  changed. 

When  the  conflict  does  not  appear  until  the  field  notes  of  the  respective 
surveys  are  returned,  then  the  survey  first  applied  for  should  be  first 
examined,  approved,  and  platted,  and  the  plats  delivered  before  the  field 
notes  of  the  survey  last  applied  for  are  taken  up  for  examination  or  plats 
constructed. 

Whenever  an  applicant  for  a  survey  shall  have  reason  to  suppose  that 
a  conflicting  claimant  will  also  apply  for  a  survey  for  patent,  he  may  give 
a  notice  in  writing  to  the  Surveyor  General  particularly  describing  such 
conflicting  claim,  and  file  a  copy  of  the  notice  of  location  of  such  conflict- 
ing claim.  In  such  case  the  Surveyor  General  will  not  order  or  authorize 
any  survey  of  such  conflicting  claim  until  the  survey  first  applied  for  has 
been  examined,  completed,  approved  and  platted,  and  the  plats  delivered. 


538  SURVEYOR  GENERAL'S  FEES. 

12.  The  applicant  has  the  option  of  employing  any  United  States 
mineral  surveyor  in  the  district  to  execute  the  order  of  survey,  and  must 
make  satisfactory  arrangements  with  such  surveyor  for  the  payment  of  his 
services  and  those  of  his  assistants  in  making  the  survey,  as  the  United 
States  will  not  be  held  responsible  for  the  payment  of  the  same.     The 
duty  of  the  surveyor  in  any  particular  case  ceases  when  he  has  executed 
the  survey  and  files  his  returns  of  survey  in  the  Surveyor  General 's  office. 
He  is  not  allowed  to  prepare  for  the  mining  claimant  the  papers  in  sup- 
port of  an  application  for  patent,  being  precluded  from  acting  either 
directly  or  indirectly  as  attorney  in  mineral  claims.  (Sec.  2334,  U.  S.  R.  S.) 

13.  The  applicant  is  advised  of  his  right  to  appeal  to  the  Commis- 
sioner of  the  General  Land  Office  from  the  approval  or  disapproval  of  the 
survey  of  his  claim.     The  appeal  must  be  in  writing  or  in  print,  should 
set  forth  in  brief  and  clear  terms  the  specific  points  of  exception  to  the 
ruling  appealed  from  and  should  be  transmitted  through  the  Surveyor 
General's  office. 


SURVEYOR  GENERAL'S  FEES. 

Estimate  of  Costs. 

Under  paragraph  91  of  the  land  office  regulations  the  Sur- 
veyor General  is  required,  upon  application,  to  make  an  esti- 
mate of  the  cost  of  office  work  in  his  office,  which  estimated 
amount  the  claimant  deposits  in  a  bank  recognized  as  a  United 
States  Depository,  to  the  credit  of  the  United  States  Treasurer. 
The  schedule  of  estimates  of  cost  will  be  approximately  as 
stated  in  the  following  table : 

For  lode  claim $30.00 

For  placer  claim 35.00 

For  mill-site 30.00 

For  mill-site  included  in  one  survey  with  a  lode  claim 20.00 

For  each  lode  claim  within  and  included  in  the  survey  of  a  placer 

claim 20.00 

For  several  lode  locations  included  in  one  survey,  the  first  location 

named T. 30.00 

All  other  locations  included,  each 25.00 

For  several  placer  locations  included  in  one  survey,  the  first  loca- 
tion named 35.00 

All  other  locations  included,  each 30.00 

For  affidavit  of  $500  expenditure  of  improvements,  after  approval 
of  survey 5.00 


SURVEYOB  GENERAL'S  FEES.  539 

Return  of  Balance  to  Applicant. 

If  it  is  found,  as  the  work  progresses,  that  the  cost  will 
exceed  the  original  estimate  the  Surveyor  General  will  demand 
a  further  deposit  to  cover  additional  cost. 

By  A.  C.  Feb.  24,  1909,  printed  on  page  654,  it  is  provided 
that  any  excess  over  and  above  the  actual  cost  of  work  per- 
formed shall  be  repaid  to  the  claimant. 

After  the  case  is  closed  in  the  Surveyor- General's  office,  if 
there  be  an  excess  of  deposit,  he  will  notify  claimant  to  that 
effect  and  the  claimant  is  required  to  fill  out  and  swear  to 
the  following  form  before  payment  will  be  made  to  him : 
To  the  U.  S.  Surveyor  General,  Denver,  Colorado: 

I  hereby  make  application  for  the  return  of  nine  dollars  and  fifty  cents 
($9.50),  being  the  excess  or  unused  mining  survey  deposit  made  in  con- 
nection with  my  application  for  official  survey  of  the  Bear  lode  mining 
claim,  mineral  survey  No.  1917,  as  per  Certificate  No.  3000,  issued  by  the 
First  National  Bank  of  Denver,  bearing  date  the  5th  day  of  January, 
1916,  and  on  oath  declare  that  I  am  the  identical  person  (or  his  legal 
representative,  or  the  duly  authorized  agent  of  the  corporation,  as  evi- 
denced by  authorization  hereto  attached),  who  made  said  payment. 

T.  H.  REYNOLDS, 
Denver,  Colorado. 

STATE  OF  COLORADO,  City  and  County  of  Denver,  ss. 

Subscribed  and  sworn  to  before  me  this  first  day  of  December,  1916. 

My  commission  expires  March  4,  1918. 

AIJCE  HATCH, 
[SEAL]  Notary  Public. 

Prior  to  the  Act  of  1909  there  was  no  authority  for  the 
repayment  of  any  excess,  but  under  that  act  an  account  is 
required  to  be  stated  in  every  case  where  application  for 
repayment  is  made.  38  L.  D.  169. 


-    ' 


540  APPLICATION  FOB  PATENT. 

•APPLICATION  FOR  PATENT. 

The  following  pages  are  intended  to  contain  the  forms  of 
application  and  proceedings  to  obtain  patent  to  a  group  of 
two  lodes  and  a  mill  site,  in  the  order  of  time  in  which  the 
several  papers  should  be  made  and  filed. 

Request  for  Official  Survey. 

A  citizen  of  the  United  States,  or  one  who  has  declared  his 
intention  to  become  such,  or  a  corporation  chartered  within 
the  United  States,  being  the  holder  of  the  possessory  title  to 
one  or  more  lode  claims,  causes  application  for  an  official  sur- 
vey to  be  made  by  an 

A.     APPLICATION  FOB  ORDER  FOR  SURVEY. 

Denver,  Colo.,  Jan.  3,  1916. 
U.  S.  Surveyor  General,  Denver,  Colorado: 

Sir — Carroll  Carter,  claimant,  hereby  makes  application  for  an  official 
survey,  under  the  provisions  of  Chapter  Six,  Title  Thirty-Two,  of  the 
Revised  Statutes  of  the  United  States,  and  regulations  and  instructions 
thereunder,  of  the  mining  claim  known  as  the  Busy  Bee  and  Eepublican 
lodes,  and  Eepublican  mill  site,  situate  in  Wisconsin  Mining  District, 
Gilpin  County,  Colorado,  in  Sections  24  and  25,  Township  No.  2  South, 
Eange  No.  74  West.  Said  claim  is  based  upon  valid  locations  made  on 
June  23,  1894,  September  15,  1900,  and  October  25,  1905.  and  duly 
recorded  on  August  22,  1894,  October  1,  1900,  and  December  9,  1905,  and 
are  fully  described  in  the  duly  certified  copies  of  the  record  of  the  location 
certificates,  filed  herewith.  Said  certificates  contain  the  name  of  the 
locator,  the  date  of  location,  and  such  a  definite  description  of  the  claims 
by  reference  to  natural  objects  or  permanent  monuments  as  will  identify 
the  claims,  and  said  locations  have  been  distinctly  marked  by  monuments 
on  the  ground,  so  that  their  boundaries  can  be  readily  traced. 

1  request  that  you  will  send  me  an  estimate  of  the  amount  required  to 
defray  the  expenses  of  platting  and  other  work  in  your  office,  required 
under  the  regulations,  that  I  may  make  proper  deposit  therefor,  and  that, 
thereupon  you  will  cause  the  survey  to  be  made  by  E.  L.  Chase,  U.  S. 


*For  many  valuable  suggestions  upon  points  covered  in  this  chapter, 
we  are  under  obligations  to  Milton  E.  Blake,  Chief  of  Mineral  Division 
in  the  Surveyor  General 's  office,  Denver. 


APPLICATION  FOR  PATENT.  541 

Mineral  Surveyor,  and  that  proper  action  be  taken  thereon  by  your  office 
as  required  by  the  United  States  mining  laws  and  regulations  thereunder. 

CARROLL  CARTER, 
P.  O.  Address,  Denver,  Colorado.  Claimant. 

The  department  requires  the  signature  to  the  above  appli- 
cation to  be  in  the  handwriting  of  the  claimant,  his  agent  OP 
attorney.  29  L.  D.  718. 

In  reply  to  the  above  application  the  Surveyor  General  fur- 
nishes the  applicant  with. an  estimate  of  the  cost  of  office 
work.  The  claimant  then  makes  a  deposit  of  such  amount  in 
some  bank  recognized  as  a  United  States  depository.  The  bank 
issues  triplicate  certificates  of  deposit,  of  which  it  mails  the 
original  to  the  Secretary  of  the  Treasury  at  Washington.  The 
duplicate  is  mailed  by  the  bank  or  the  claimant  to  the  Sur- 
veyor General,  and  the  triplicate  the  claimant  retains. 

This  certificate  is  a  mere  receipt  for  money,  and  has  no  fur- 
ther value  to  the  claimant  except  where  an  application  has 
been  withdrawn,  in  which  case  the  unexpended  balance  will 
be  allowed  to  apply  on  the  survey  of  another  claim.  Par.  8, 
Circular,  page  537. 

Upon  receipt  of  the  duplicate  certificate  of  deposit,  the  Sur- 
veyor General  mails  to  the  U.  S.  mineral  surveyor  designated 
in  the  application  the 

B.    ORDER  FOR  MINERAL  SURVEY. 

DEPARTMENT  OF  THE  INTERIOR, 
Office  of  U.  S.  Surveyor  General, 

Denver,  Colorado,  Jan.  10,  1916. 
To  E.  L.  Chase,  U.  S.  Mineral  Surveyor: 

Sir — Application  has  been  filed  in  this  office  by  Carroll  Carter,  dated 
January  3,  1916,  for  an  official  survey  of  the  mining  claim  of  Carroll 
Carter,  known  as  the  Busy  Bee  and  Republican  lodes  and  Republican  mill 
site,  situate  in  Wisconsin  Mining  District,  Gilpin  County,  in  Sections  24 
and  25,  Township  No.  2  South,  Kange  No.  74  West,  which  claim  is  based 
upon  locations  made  on  June  23,  1894,  September  15,  1900,  and  October 
25,  1905,  and  duly  recorded  on  August  22,  1894,  October  1,  1900,  and 
December  9,  1905,  and  are  fully  described  in  the  duly  certified  copies  of 
the  record  of  the  location  certificates,  filed  by  the  applicant  for  said 
Burvey,  copies  of  which  are  herewith  inclosed.  You  are  hereby  dircctci! 


542  APPLICATION  FOR  PATENT. 

to  make  the  survey  of  said  claim  in  strict  conformity  with  existing  laws, 
official  regulations,  and  instructions  thereunder,  and  to  make  proper 
return  to  this  office.  Said  survey  will  be  designated  as  Survey  No.  21000 
A  and  B. 

Very  respectfully, 

JOHN  B.  McGAURAN, 
U.  S.  Surveyor  General  for  Colorado. 

With  the  order  B  are  inclosed  copies  of  the  location  certifi- 
cates made  in  the  Surveyor  General's  office  from  the  certified 
copies  filed  by  applicant.  rre.jU 

The  numbers  of  the  survey  lots  were  formerly  consecutive 
in  each  mineral  district,  but  since  the  abolition  of  mineral  dis- 
tricts they  are  consecutive  throughout  the  State,  beginning 
with  No.  4,501,  with  which  number  the  new  series  was  com- 
menced November  30,  1886. 

Survey  to  Conform  to  Record. 

This  order  of  survey  "B"  being  received  by  the  U.  S.  min- 
eral surveyor  designated  in  "A,"  he  must  proceed  in  person 
to  the  premises,  make  an  actual  survey,  and  mark  each  post 
with  the  number  of  the  survey  and  the  number  of  the  corner. 

The  copies  of  location  certificates  mentioned  as  inclosed  in 
"A"  must  be  certified  by  the  recorder. 

The  surveyor,  in  making  his  official  survey,  must  follow 
the  lines  as  staked  upon  the  ground. 

Tie  to  Government  Corner. 

The  rules  limit  the  tie  line  to  two  miles  and  where  some 
claims  in  a  group  exceed  that  distance  the  entry  will  be 
rejected  as  to  them.  42  L.  D.  485. 

Changing  Lines  After  Order  Received. 

The  Surveyor  General  will  not  allow  a  serious  departure 
from  the  lines  called  for  in  the  location  certificate,  without 
insisting  upon  the  filing  of  an  amended  or  relocation  certificate 
in  the  office  of  the  recorder  of  the  proper  county,  and  the 


APPLICATION  FOR  PATENT.  543 

deposit  of  a  certified  copy  of  such  amended  record  in  the 
Surveyor  General's  office,  and  when  such  certified  copy  has 
been  filed  an  amended  order  of  survey  issues,  in  which,  if  any 
new  ground  has  been  acquired,  the  original  number  of  the 
survey  is  abandoned  and  a  new  number  in  the  current  series 
substituted.  29  L.  D.  718.  An  additional  fee  of  $5  is  charged 
for  the  amended  order,  besides  the  cost  of  additional  labor, 
if  any,  imposed  on  the  Surveyor  General's  office. 

Amending  Record  After  Order  Received. 

If  the  certificate  be  indefinite,  or  if  the  end  lines  are  not 
parallel,  or  if  not  properly  tied,  or  if  the  certificate  be  without 
date  or  otherwise  irregular,  it  will  be  returned  for  amend- 
ment. Care  in  the  first  instance  will  obviate  delays  on  such 
grounds. 

For  form  of  amended  location  certificate  see  page  160. 

In  surveys  upon  old  lodes  (before  May  10, 1872)  whose  loca- 
tion certificates  were  not  supposed  to  call  for  course  or  monu- 
ment, the  surveyor  is  presumed  to  make  his  official  survey 
according  to  the  location  and  original  claim  of  the  locator,  but 
practically  it  is  made  wherever  it  may  be  supposed  to  cover 
the  vein,  or  wherever  vacant  ground  can  be  found  to  include 
in  the  survey. 


544 


APPLICATION  FOR  PATENT. 


APPLICATION  FOB  PATENT.  545 

In  almost  all  cases  of  early  location  (and  in  many  recent 
ones)  it  is  advisable  to  make  a  formal  relocation  before  asking 
for  order  for  survey.  This  may  save  time  in  the  Surveyor 
General's  office  and  prevent  fatal  results  in  resisting  adverse 
claims. 

But  an  amended  location  made  by  one  who  has  parted  with 
his  title  will  not  be  recognized  by  the  Land  Office.  18  L.  D.  536. 

For  instructions  as  to  making  survey  on  the  ground,  see 
LAND  OFFICE  RULES,  pp.  493,  524. 

Delay  to  Proceed  With  Survey. 

The  first  applicant  has  priority  as  long  as  he  proceeds  with 
diligence.  When  he  fails  to  perfect,  to  the  injury  of  a  party 
desiring  to  proceed,  the  steps  to  be  taken  by  the  latter  are  indi- 
cated in  Sec.  11  of  the  Circular,  p.  537. 

The  survey  being  complete  the  surveyor  makes  and  for- 
wards to  the  Surveyor  General  a  diagram  of  the  lode,  giving 
its  corners,  courses,  distances,  ties,  conflicts,  adjoiners  and 
improvements,  which  is  known  as 

C.    THE  PRELIMINARY  PLAT. 

The  plat  made  by  the  surveyor  was  formerly  treated  as  the 
official  plat  of  the  claim,  from  which  the  connected  plat  of 
all  claims  kept  by  the  Surveyor  General  was  made,  but  under 
present  practice  the  surveyor's  plat  is  only  treated  as  a  cor- 
rection to  the  field  notes,  all  official  plats  now  being  made  by 
the  Surveyor  General. 

Along  with  this  diagram  or  preliminary  plat  "C,"  the  sur- 
veyor forwards  to  the  Surveyor  General  his 

D.    FIELD  NOTES, 

the  following  form  being  arranged  to  illustrate  the  more 

ordinary  complications : 

Mineral  Survey  No.  21000  A  and  B.  Denver  Land  District 

FIELD   NOTES. 

Of  the  survey  of  the  mining  claim  of  CARROLL  CARTER,  known  as  the  Busy 
Bee  and  Republican  lodes,  and  Eepublican  mill  site,  Wisconsin  Mining 
District,  Gilpin  County,  Colorado. 


546 


APPLICATION  FOB  PATENT. 


Sections  24  and  25,  Township  2  South,  Range  74  West  of  the  6th 
Principal  Meridian. 

Surveyed  under  instructions  dated  January  10,  1916,  by  B.  L.  Chase, 
U.  S.  Mineral  Surveyor. 

Survey  commenced  January  17,  1916. 

Survey  completed  February  8,  1916. 

Address  of  claimant:    Denver,  Colorado. 

DATES  OF  LOCATIONS. 

Busy  Bee  lode,  June  23,  1894. 
Eepublican  lode,  September  15,  1900. 
Republican  mill  site,  October  25,  1905. 

SURVEY  NO.  21000  A.  —  BUSY  BEE  LODB. 


RET. 


582.83 

824.25 
851.07 

1092.49 
1218.55 

1350. 

1442.49 

1500. 


146.10 


Beginning  at  Cor.  No.  1. 

A  granite  stone  8x15x24  ins.,  set  16  ins.  in  the  ground  in 
mound  of  stone  chiseled  B.  B.,  1-21000  A.,  whence 

The  S.  %  cor.  Sec.  24,  T.  2  S.,  E.  74  W.  of  the  6th  P.  M. 
bears  S.  26°  2'  30"  W.  853.47  ft. 

Cor.  No.  1,  Sur.  No.  19999  Climax  lode,  claimant  unknown, 
bears  S.   25°  35'  10"  E.  508.79  ft. 

Kingston  Peak  bears  S.  73°  28'  W. 

Thence  S.  51°  8'  W. 
Intersect  line  2-3,  Sur.  No.  19999  Climax  lode  at  S.  85°  8'  W. 

663.20  ft.  from  Cor.  No.  2. 

Intersect  line  3-4,  Eepublican  lode  of  this  survey. 
Intersect  line  4-1,  Sur.  No.  19999  Climax  lode  at  S.  85°  8'  W. 

885.58  ft.  from  Cor.  No.  1. 
Cor.  No.  2,  Sur.  No.  21000  B.,  Eepublican  mill  site,  also  inter- 

sect line  1-2,  Eepublican  lode  of  this  survey. 
Intersect  the  S.  boundaryy  Sec.  24,  at  N.  89°  47'  W.  574.08  ft. 

from  S.  !/4  Cor.  said  section. 

Mosquito  Creek,  4  ft.  wide,  4  ins.  deep,  course  East. 
Cor.  No.  3  Sur.  No.  21000  B.,  Eepubliean  mill  site. 
To  Cor.  No.  2. 

A  granite  stone  6x12x28  ins.,  set  14  ins.  in  the  ground  with 
mound  of  earth  and  stone  chiseled  B.  B.  2-21000  A.,  whence 

A  pine  tree  14  ins.  in  diameter,  blazed  and  scribed  B.xT. 
B.B.,  2-21000  A.  bears  S.  64°  43'  E.  52.1  ft. 

Kingston  Peak  bears  S.  75°  45'  W. 

Thence  N.  38°  52'  W. 
Witness  Corner  to  Cor.  No.  3. 

A  quartz  stone  8x8x24  ins.  set  12  ins.  in  the  ground  with 
mound  of  earth  and  stone  chiseled  W.C.,  B.B.,  3-21000  A. 


APPLICATION  FOE  PATENT.  547 

150.         To  Cor.  No.  3. 

Not  set,  as  it  falls  in  center  of  Mosquito  Creek,  3  ft.  wide, 
course  East,  where  permanent  corner  could  not  be  established. 

Thence  N.  51°  8'  E. 
96.77      Intersect  the  S.  boundary  Sec.  24,  at  S.  89°  47'  E.  1831.96  ft. 

from  the  S.W.  Cor.  said  Section. 

185.13      Intersect  line  1-2,  Republican  lode  of  this  survey. 
426.55      Intersect  line  4-1,  Sur.  No.  19999,  Climax  lode,  at  S.  85°  8'  W. 

1153.82  ft.  from  Cor.  No.  1. 

453.37      Intersect  line  3-4,  Republican  lode  of  this  survey. 
694.79      Intersect  line  2-3,  Sur.  No.  19999,  Climax  lode,  at  S.  85°  8'  W. 

931.44  ft.  from  Cor.  No.  2. 
1500.          To  Cor.  No.  4. 

A  gneiss  stone  6x8x28  ins.  set  14  ins.  in  the  ground  with 
mound  of  earth  and  stone  chiseled  B.B.,  4-21000  A.,  whence 

Cor.  No.  2,  Sur.  No.  19900,  Black  Mask  lode,  claimant  un- 
known, bears  S.  65°  40'  W.  663.2  ft. 

Thence  S.  38°  52'  E. 
150.         To  Cor.  No.  1,  the  place  of  beginning. 

REPUBLICAN  LODE. 

Beginning  at  Cor.  No.  1. 

A  granite  stone  6x12x24  ins.  set  12  ins.  in  ground  in  mound 
Of  stone  chiseled  R.,  1-21000  A.,  whence 

The  S.  %  Cor.  See.  24,  T.  2  S.,  R.  74  W.  of  the  6th  P.  M. 
bears  S.  74°  1'  50"  W.  630.15  ft. 

A  pine  tree  10  ins.  in  diameter  blazed  and  scribed  B.T.  R. 
1-21000  A.  bears  S.  26°  23'  W.  15.1  ft. 
Thence  S.  85°  8'  W. 

450.58      Cor.  No.  1,  Sur.  No.  21000  B.,  Republican  mill  site. 
1085.72      Cor.  No.  2,  Sur.  No.  21000  B.,  Republican  mill  site,  also  inter- 
sect line  1-2,  Busy  Bee  lode  of  this  survey. 
1353.96      Intersect  line  3-4,  Busy  Bee  lode  of  this  survey. 
1500.         To  Cor.  No.  2. 

A  granite  stone  5x14x26  ins.  set  14  ins.  in  the  ground  in 
mound  of  stone  chiseled  R.,  2-21000  A.,  whence 
No  bearings  available. 

Thence  N.  4°  52'  W. 

135.         Witness,  Corner  to  Cor.  No.  3,  also  Cor.  No.  4,  Sur.  No.  19999, 
Climax  lode. 

A  granite  stone  5x12x26  ins.  set  14  ins.  in  the  ground  with 
mound  of  earth  and  stone  chiseled  W.  C.  R.,  3-21000  A.,  and 
C.  4-19999,  whence 

Kingston  Peak  bears  S.  72°  56'  W. 


548  APPLICATION  FOB  PATENT. 

A  balsam  tree  12  ins.  in  diameter  blazed  and  scribed  B.xT. 
W.  C.  R.,  3-21000  A.,  and  B.xT.C.-4-19999  bears  S.  5°  27'  W. 
46.1  ft. 
150.          To  Cor.  No.  3. 

On  line  3-4,  Sur.  No.  19999,  Climax  lode. 

•    Not  set,  as  it  falls  in  road,  5  ft.  wide,  course  N.  49°   E., 
where  permanent  corner  could  not  be  established. 

Thence  N.  85°  8'  E. 

368.42      Intersect  line  3-4  Busy  Bee  lode  of  this  survey. 
636.66      Intersect  line  1-2,  Busy  Bee  lode  of  this  survey. 
1500.         To  Cor.  No.  4. 

On  line  1-2,  Sur.  No.  19999,  Climax  lode. 
A  granite  stone  3x12x24  ins.  set  12  ins.  in  the  ground  with 
mound  of  earth  and  stone  chiseled  E.,  4-21000  A.,  whence 

Cor.  No.  1,  Busy  Bee  lode  of  this  survey  bears  N.  26°  12'  W. 
494.82  ft. 

No  bearings  to  local  objects  available. 

Thence  S.  4°  52'  E. 

15.         Cor.  No.  1,  Sur.  No.  19999,  Climax  lode. 
150.         To  Cor.  No.  1,  the  place  of  beginning. 
Variation  at  all  corners,  14°  15'  E. 

Lode  Lines. 

As  near  as  can  be  determined  from  present  developments  the 
veins  of  the  Busy  Bee  and  Republican  lodes  run  from  their 
respective  discovery  points  as  follows: 

Busy  Bee  lode,  N.  51°  8'  E.  665  ft.  and  S.  51°  8'  W.  835  ft. 

Republican  lode,  N.  85°  8'  E.  750  ft.  and  S.  85°  8'  W.  750  ft. 

*Area. 

ACRES. 

Total  area  Busy  Bee  lode 5.165 

Area  in  conflict  with  Sur.  No.  19999,  Climax  lode 0.924 

Total  area  Republican  lode 5.165 

Area  in  conflict  with  Sur.  No.  19999,  Climax  lode 0.516 

Busy  Bee  lode  of  this  survey 0.924 

Busy  Bee  lode  of  this  survey,  exclusive  of  its  conflict  with 

Sur.  No.  19999,  Climax  lode 0.832 

*The  field  notes  should  not  show  exclusions  as  the  applicant  is  required 
to  show  them  in  his  application  and  notices.  (Manual  of  Instructions, 
referred  to  in  note  on  page  535. 


APPLICATION  FOR  PATENT. 


54'J 


SURVEY  NO.  21000  B. — REPUBLICAN  MILL  SITE. 

Beginning  at  Cor.  No.  1. 

On  line  1-2,  Sur.  No.  21000  A.,  Republican  lode  at  S.  85°  8' 
W.  450.58  ft.  from  Cor.  No.  1. 

A  granite  stone  8x12x28  ins.  set  12  ins.  in  the  ground  with 
mound  of  stone  chiseled  R.M.S.  1-21000  B.,  whence 

The  S.  %  Cor.  See.  24,  T.  2  S.,  R.  74  W.  of  the  6th  P.  M. 
bears  S.  49°  15'  20"  W.  207.07  ft. 

A  pine  tree  10  ins.  in  diameter  blazed  and  scribed  B.xT., 
B.M.S.  1-21000  B.,  bears  8.  21°  7'  E.  16  ft. 
Thenee  S.  85°  8'  W. 

635.14     To  Cor.  No.  2. 

At  the  intersection  of  lines  1-2,  Sur.  No.  21000  A.,  Busy  Bee 
••>>•,"'       and  Republican  lodes. 

A  granite  stone  8x14x26  ins.  set  12  ins.  in  the  ground  with 
mound  of  stone  chiseled  R.M.S.  2-21000  B.,  whence  no  bearings 
available. 

Thence  S.  51°  8'  W. 

126.06  Intersect  the  S.  boundary  See.  24  at  S.  89°  47'  E.  2069.88  ft. 

from  S.W.  Cor.  said  Section. 
257.51      Mosquito  Creek,  4  ft.  wide,  4  ins.  deep,  course  East. 

350.         To  Cor.  No.  3. 

On  line  1-2,  Sur.  No.  21000  A.,  Busy  Bee  lode. 
A  quartz  stone  8x8x26  ins.  set  14  ins.  in  the  ground  with 
mound  of  earth  and  stone  chiseled  R.M.S.  3-21000  B.,  whence 
No  bearings  available. 

Thenee  S.  38°  52'  E. 

355.07  To  Cor.  No.  4. 

A  granite  stone  8x14x26  ins.  set  14  ins.  in  the  ground  with 
mound  of  earth  and  stone  chiseled  R.M.S.  4-21000  B.,  whence 

A  pine  stump  20  ins.  in  diameter  showing  16  ins.  above 
ground,  scribed  B.xS.,  R.M.S.  4-21000  B.,  bears  S.  50°  21' 
W.  17  ft. 

Thence  N.  51°  8'  E. 

500.          Mosquito  Creek,  4.5  ft.  wide,  4  ins.  deep,  course  Easterly. 
661.25      Intersect  the  S.  boundary  Sec.  24  at  N.  89°  47'  W.  10.76  ft. 

from  S.  %  Cor.  said  Section. 
876.56      To  Cor.  No.  1,  the  place  of  beginning. 
Variation  at  all  corners,  14°  15'  E. 

Containing  5  acres. 

The  surveys  of  the  Busy  Bee  and  Republican  lodes  and  the 
Eepublican  mill  site  are  identical  with  their  respective  locations 
as  staked  upon  the  ground. 


550  APPLICATION  FOR  PATENT. 

Location. 

This  claim  is  located  in  the  S.  V2  Sec.  24  and  the  N.W.  *4  Sec.  25, 
T.  2  S.,  K.  74  W.  of  the  6th  P.  M. 

Expenditure  of  Five  Hundred  Dollars. 

I  certify  that  the  value  of  the  labor  and  improvements  made  upon  or 
for  the  benefit  of  each  of  the  lode  locations  embraced  in  said  mining  claim 
by  the  claimant  or  his  grantors  is  not  less  than  five  hundred  dollars  and 
that  said  improvements  consist  of: 

No.  1.  The  discovery  shaft  of  the  Busy  Bee  lode,  the  center  of 
which  being  the  discovery  point  is  on  the  center  line  665  ft.  from  the 
center  of  line  4-1  3^x7  ft.  in  the  clear,  40  ft.  deep  timbered.  Value  $500. 

No.  2.  A  shaft,  the  center  of  which  bears  N.  39°  15'  E.  430  ft.  from 
Cor.  No.  2,  Busy  Bee  lode,  4%x7  ft.,  15  ft.  deep.  Value  $100. 

No.  1.  The  discovery  shaft  of  the  Eepublican  lode,  the  center  of 
which  being  the  discovery  point,  is  on  the  center  line  750  ft.  from  the 
center  of  line  4-1,  4x6  ft.,  25  ft.  deep  in  earth  and  rock.  Value  $275. 

No.  2.  A  shaft  which  bears  from  Cor.  No.  1,  Eepublican  lode,  N.  86° 
10'  W.  684  ft.,  5x8  ft.,  25  ft.  deep,  timbered.  Value  $300. 

No.  3.  A  shaft  which  bears  from  Cor.  No.  1,  Eepublican  lode  N.  88° 
W.  745  ft.,  4x6  ft.,  40  ft.  deep,  timbered.  Value  $500. 

No.  4.  A  shaft  which  bears  from  Cor.  No.  1,  Eepubliean  lode  N.  84° 
25'  W.  690  ft.,  3x5  ft.,  10  ft.  deep  in  earth  and  rock.  Value  $100. 

A  tunnel,  the  mouth  of  which  bears  from  Cor.  No.  2,  Busy  Bee  lode, 
N.  48"  15'  E.  333  ft.,  3y2x6  ft.,  running  N.  23°  E.  90  ft.;  thence  N.  60° 
30'  E.  90  ft.;  thence  S.  78°  E.  100  ft.  to  breast.  Value  $4,000. 

I  am  advised  by  the  applicant  that  this  tunnel  has  been  constructed 
as  a  common  improvement  subsequent  to  the  location  of  the  Busy  Bee  and 
Republican  lodes  of  this  survey  and  the  time  since  which  contiguity  and 
common  ownership  have  prevailed  as  between  said  lodes,  said  lodes  being 
all  the  lode  locations  owned  by  him  and  forming  a  contiguous  group 
within  the  range  of  benefit  and  that  no  portion  of  or  interest  in  the  value 
of  the  tunnel  has  been  heretofore  credited  or  applied  as  patent 
expenditures. 

The  surface  rises  rapidly  from  the  mouth  of  the  tunnel  in  a  Northerly 
and  Northeasterly  direction,  Cor.  No.  4  of  the  Busy  Bee  lode  being 
approximately  600  ft.,  and  Cor.  No.  4  of  the  Eepubliean  lode  being 
approximately  400  ft.  above  the  tunnel  level. 

The  tunnel  continued  with  drifts  and  cross-cuts  run  therefrom  will 
economically  and  advantageously  develop  both  lodes. 

An  undivided  one-half  interest  in  the  value  of  the  tunnel  is  hereby 
credited  as  patent  expenditure  to  each  of  the  Busy  Bee  and  Republican 
lodes. 


APPLICATION  FOE  PATENT.  551 

Other  Improvements. 

A  mill  building  20x25  ft.,  the  N.W.  Cor.  of  which  bears  from  Cor. 
No.  2,  Republican  mill  site,  S.  6°  20'  E.  153  ft.,  course  of  long  sides,  N. 
30°  E.  Claimant  herein. 

A  pit  for  water  wheel,  the  N.W.  Cor.  of  which  bears  from  Cor.  No.  2, 
Republican  mill  site,  S.  5°  30'  E.  182.5  ft.,  8x20  ft.,  10  ft.  deep,  cribbed 
with  logs.  Course  of  long  sides,  N.  30°  E.  Claimant  herein. 

Instrument. 

The  surveys  were  made  with  a  Peter  Heer  Light  Mountain  Transit. 
The  courses  were  deflected  from  the  true  meridian  as  determined  by 
direct  solar  observations. 

The  distances  were  measured  with  600  ft.  and  100  ft.  steel  tapes. 

NOTE. 

The  disagreements  between  these  field  notes  and  the  location  certificate 
of  the  Busy  Bee  lode  as  regards  the  courses  of  the  lode  and  boundary 
lines  and  the  position  of  the  discovery  shaft  on  the  lode  line  and  the 
disagreement  between  these  field  notes  and  the  location  certificate  of  the 
Republican  lode  as  regards  the  position  of  the  discovery  shaft  on  the  lode 
line,  are  due  to  errors  in  the  certificates. 

Report. 

All  lines  and  connections  of  these  surveys  were  run  direct  upon  the 
ground. 

I  found  the  S.  %  Cor.  Sec.  24,  T.  2  S.,  B.  74  W.  of  the  6th  P.  M.  to  be 
a  granite  stone  showing  5  ins.  above  ground  marked  ^4  on  North  face. 

Sur.  No.  19900,  Black  Mask  lode. 

.     Cor.  No.  2  is  a  granite  stone  4x10  ins.  showing  8  ins.  above  ground 
chiseled  2-19900,  B.M. 

Sur.  No.  19999,  Climax  lode. 

.   Cors.  Nos.  1,  2,  3  and  4  are  granite  stones  properly  set  and  marked 
and  retain  their  correct  relative  positions  as  approved. 

From  Cor.  No.  1,  the  S.  V*  Cor.  Sec.  24,  T.  2  S.,  R.  74  W.  of  the  6th 
P.  M.  bears  S.  62°  37'  W.  669.39  ft.  instead  of  S.  62°  30'  W.  672  ft. 
as  approved. 

FINAL  OATHS  OF  SURVEYORS. 

LIST  OP  NAMES. 

A  list  of  the  names  of  the  individuals  employed  by  R.  L.  Chase,  TTnited 
States  Mineral  Surveyor,  to  assist  in  running,  measuring,  and  marking  the 


552  APPLICATION  FOR  PATENT. 

lines,  corners,  and  boundaries  described  in  the  foregoing  field  notes  ot 
the  survey  of  the  mining  claim  of  Carroll  Carter,  known  as  the  Busy  Bee 
and  Republican  lodes  and  Republican  mill  site,  and  showing  the  respective 
capacities  in  which  they  acted. 

L.  E.  LEMEN,  Chainman. 

OTTO  SHATZ,  Axman. 

FINAL  OATHS  OF  ASSISTANTS. 

We,  L.  E.  Lemen  and  Otto  Shatz,  do  solemnly  swear  that  we  assisted 
E.  L.  Chase,  United  States  Mineral  Surveyor,  in  marking  the  corners  and 
surveying  the  boundaries  of  the  mining  claim  of  Carroll  Carter,  known 
as  the  Busy  Bee  and  Republican  lodes  and  Republican  mill  site,  repre- 
sented in  the  foregoing  field  notes  as  having  been  surveyed  by  said  min- 
eral surveyor  and  under  his  direction;  and  that  said  survey  has  been  in 
all  respects,  to  the  best  of  our  knowledge  and  belief,  faithfully  and  cor- 
rectly executed,  and  the  corner  and  boundary  monuments  established 
according  to  law  and  the  instructions  furnished  by  the  United  States 
Surveyor  General  for  Colorado. 

Jj.  E.  LEMEN,  Chainman. 
OTTO  SHATZ,  A.xman. 

Subscribed  and  sworn  to  by  the  above-named  persons  before  me  this 
10th  day  of  February,  1916. 

My  commission  expires  March  4,  1918.  ALICE  HATCH, 

(SEAL)  Notary  Public. 

FINAL  OATH  OF  U.  S.  MINERAL  SURVEYOR. 

I,  R.  L.  Chase,  U.  S.  Mineral  Surveyor,  do  solemnly  swear  that,  in  pur- 
suance of  instructions  received  from  the  United  States  Surveyor  General 
for  Colorado,  dated  January  10,  1916,  I  have,  in  strict  conformity  to  the 
laws  of  the  United  States,  the  official  regulations  and  instructions  there- 
under, and  the  instructions  of  said  Surveyor  General,  faithfully  and  cor- 
rectly executed  the  survey  of  the  Mining  Claim  of  Carroll  Carter,  known 
as  the  Busy  Bee  and  Republican  lodes  and  Republican  mill  site,  situate  in 
Wisconsin  Mining  District,  Gilpin  County,  Colorado,  in  Sections  24  and 
25,  Township  No.  2  S.,  Range  No.  74  W.  of  the  6th  P.  M.,  and  designated 
as  Survey  No.  21000  A.  and  B.,  as  represented  in  the  foregoing  field  notes, 
which  accurately  show  the  boundaries  of  said  mining  claim  as  distinctly 
marked  by  monuments  on  the  ground,  and  described  in  the  attached  copy 
of  each  location  certificate,  which  was  received  by  me  from  the  Surveyor 
General  with  said  instructions,  and  that  all  the  corners  of  said  survey 
have  been  established  and  perpetuated  in,  strict  accordance  with  the  law, 
official  regulations  and  instructions  thereunder;  and  I  do  further  solemnly 
swear  that  the  foregoing  are  the  true  and  original  field  notes  of  said 
survey  and  my  report  therein,  and  that  the  labor  expended  and  improve- 
ments made  upon  or  for  the  benefit  of  each  of  the  lode  locations  embraced 
in  said  mining  claim  by  claimant  or  his  grantors  are  as  therein  fully 


APPLICATION  FOE  PATENT.  553 

stated,  and  that  the  character,  extent,  location,  and  itemized  value  thereof 
are  specified  therein  with  particularity  and  full  detail,  and  that  no  portion 
of  or  interest  in  said  labor  or  improvements  so  credited  to  this  claim  has 
been  included  in  the  estimate  of  expenditures  upon  any  other  claim. 

E.  L.  CHASE, 
U.  S.  Mineral  Surveyor. 

Subscribed  and  sworn  to  by  the  said  B.  L.  Chase,  U.  S.  Mineral  Sur- 
veyor, before  me,  a  Notary  Public  in  and  for  the  City  and  County  of 
Denver,  Colorado,  this  12th  day  of  February,  1916. 

My  commission  expires  March  4,  1918.  ALICE  HATCH, 

(SEAL)  Notary  Public. 

The  preliminary  Plat  "C"  and  Field  Notes  "D"  contain- 
ing, besides  what  are  strictly  the  Field  Notes,  also  the  memo- 
randa of  improvements,  list  of  helpers,  etc.,  with  certificate 
and  affidavit  as  above  given,  and  the  location  certificates 
received  by  the  surveyor  with  the  order  "B"  are  then  for- 
warded to  the  Surveyor  General,  who  compares  the  plat, 
reviews  the  notes,  etc.,  and  if  errors  appear,  as  they  often  do, 
or  if  he  can  not  make  the  connections  agree  with  his  "con- 
nected plat,"  they  are  returned  for  correction,  but  if  correct, 
the  Field  Notes  are  endorsed  as  follows: 

E.    SURVEYOR  GENERAL'S  CERTIFICATE  OF  APPROVAL  OF  FIELD  NOTES  AND 
SURVEY  OF  MINING  CLAIM. 

DEPARTMENT  OF  THE  INTERIOR, 

Office  of  the  U.  S.  Surveyor  General, 

Denver,  Colo.,  April  5,  1916. 

I,  TJ.  S.  Surveyor  General  for  Colorado,  do  hereby  certify  that  the  fore- 
going and  hereto  attached  Field  Notes  and  Eeturn  of  the  Survey  of  the 
Mining  Claim  of  Carroll  Carter,  known  as  the  Busy  Bee  and  Kepublican 
lodes  and  Eepublican  mill  site,  situate  in  Wisconsin  Mining"  District, 
Gilpin  County,  Colorado,  in  Sections  24  and  25,  Township  No.  2  S.,  Eange 
No.  74  W.  of  the  6th  P.  M.,  designated  as  Survey  No.  21000  A.  and  B., 
executed  by  E.  L.  Chase,  U.  S.  Mineral  Surveyor,  February  8,  1916,  under 
my  instructions  dated  January  10,  1916,  have  been  critically  examined 
and  the  necessary  corrections  and  explanations  made,  and  the  said  Field 
Notes  and  Keturn,  and  the  Survey  they  describe,  are  hereby  approved.  A 
true  copy  of  the  copy  of  each  location  certificate  filed  by  the  applicant 
for  survey  ia  included  in  the  field  notes. 

JOHN  B.  MCGAUBAN, 
U.  S.  Surveyor  General  for  Colorado. 


554  APPLICATION  FOR  PATENT. 

The  field  notes  "D"  endorsed  with  the  official  approval  "E " 
are  then  bound  and  kept  permanently  for  reference  in  the 
Surveyor  General's  office  after  he  has  caused  to  be  made  from 
them 

F.     THE  FINAL  PLAT. 

which  is  first  sent  by  him  to  the  General  Land  Office  at  Wash- 
ington in  compliance  with  Regulation  34,  where  the  Com- 
missioner has  the  necessary  number  of  photolithographic  copies 
made,  which  are,  with  the  original  plat,  returned  to  the  Sur- 
veyor General.  The  original  is  retained  in  the  Surveyor  Gen- 
eral's office,  one  copy  is  forwarded  by  the  Surveyor  General 
to  the  proper  local  land  office  and  three  copies  are  forwarded 
to  the  applicant  or  his  agent  or  attorney;  one  for  posting 
on  the  lode  claims,  one  for  posting  on  the  mill  site  and  one 
for  filing  in  the  local  land  office  with  the  first  set  of  papers. 

Extra  photolithographic  copies  of  the  final  plat  may  be 
obtained  from  the  Surveyor  General  at  nominal  cost. 

The  original  and  each  copy  of  the  final  plat  "  F  "  is  certified 
by  endorsement  thereon,  as  follows : 

G.   SURVEYOR  GENERAL'S  APPROVAL  OF  SURVEY  AND  CERTIFICATE  OF  $500 

IMPROVEMENTS. 

Dates  of  location,  Busy  Bee  lode,  June  23,  1894;  Republican  lode,  Sept. 
15,  1900;  Republican  mill  site,  Oct.  25,  1905.  Mineral  Survey  No.  21000, 
Denver  land  district. 

Plat  of  the  claim  of  Carroll  Carter,  known  as  the  Busy  Bee  and  Repub- 
lican lodes  and  Republican  mill  site,.  Wisconsin  mining  district,  Gilpin 
County,  Colorado,  containing  an  area  of  8.058  acres.  Scale  of  200  feet 
to  the  inch.  Variation  15°  20'  east.  Surveyed  by  R.  L.  Chase,  U.  S. 
Mineral  Surveyor,  Feb.  8,  1916. 

The  original  field  notes  of  the  survey  of  the  mining  claim  of  Carroll 
Carter,  known  as  the  Busy  Bee  and  Republican  lodes  and  Republican  mill 
site  from  which  this  plat  has  been  made  under  my  direction,  have  been 
examined  and  approved,  and  are  on  file  in  this  office,  and  I  hereby  certify 
that  they  furnish  such  an  accurate  description  of  said  mining  claim  as 
will,  if  incorporated  into  a  patent,  serve  fully  to  identify  the  premises, 
and  that  such  reference  is  made  therein  to  natural  objects  or  permanent 
monuments  as  will  perpetuate  and  fix  the  locus  thereof.  I  further  certify 
that  five  hundred  dollars'  worth  of  labor  has  been  expended  or  improve- 
ments made  upon  said  mining  claim  by  claimant  or  his  grantors  and  that 


APPLICATION  FOR  PATENT.  '    555 

raid  improvements  consist  of  six  shafts  and  a  tunnel,  as  appears  by  the 
affidavit  of  the  mineral  surveyor;  that  the  location  of  said  improvements 
is  correctly  shown  upon  this  plat,  and  that  no  portion  of  said  labor  or 
improvements  has  been  included  in  the  estimate  of  expenditures  upon 
any  other  claim. 

And  I  further  certify  that  this  is  a  correct  plat  of  said  mining  claim 
made  in  conformity  with  said  original  field  notes  of  the  survey  thereof, 
and  the  same  is  hereby  approved. 

JOHN  B.  McGAURAN, 
U.  S.  Surveyor  General  for  Colorado. 
U.  S.  Surveyor  General's  Office,  Denver,  Colo. 

April  5,  1916. 

"When  the  improvements  are  completed,  pending  publica- 
tion, the  Surveyor  General  makes  a  separate  certificate. — See 
p.  595. 

The  amount  of  improvements  is  to  be  found  by  the  Surveyor 
General  or  his  deputy,  or  from  the  testimony  of  witnesses. — 
U.  S.  v.  King,  83  F.  188,  27  C.  C.  A.  509.  See  L.  0.  Eeg.  49. 

The  certificate  is  not  conclusive  upon  the  department  which 
may  require  further  showing.  43  L.  D.  152. 

Along  with  the  three  copies  of  the  final  plat  "F,"  with  its 
endorsement  "G"  the  Surveyor  General  forwards  to  the  claim- 
ant or  his  attorney  or  agent,  the 

H.  TRANSCRIPT  OF  FIELD  NOTES,  otherwise  called 
"APPROVED  FIELD  NOTES." 

This  instrument  "H"  is  verbatim  the  same  as  "D,"  includ- 
ing all  its  exhibits,  but  not  the  Surveyor  General's  certifi- 
cate "G."  Instead  of  the  certificate  "G"  such  transcript  is 
certified  as  follows : 

L   U.  S.  SURVEYOR  GENERAL'S  FINAL  CERTIFICATE  ON  FIELD  NOTES. 

DEPARTMENT  OF  THE  INTERIOR, 

Office  of  U.  S.  Surveyor  General, 

Denver,  Colo.,  April  5,  1916. 

I,  TJ.  S.  Surveyor  General  for  Colorado,  do  hereby  certify  that  the 
foregoing  transcript  of  the  Field  Notes,  return  and  approval  of  the 
survey  of  the  mining  claim  of  Carroll  Carter,  known  as  the  Busy  Bee  and 
Republican  lodes  and  Republican  mill  site,  situate  in  Wisconsin  mining 
district,  Gilpin  County,  Colorado,  in  Sections  24  and  25,  Township  No.  2 


556  APPLICATION  FOR  PATENT. 

S.,  Kange  No.  74  W.  of  6th  P.  M.,  and  designated  as  Survey  No.  21000 
A.  and  B.,  has  been  correctly  copied  from  the  originals  on  file  in  this  office; 
that  said  Field  Notes  furnish  such  an  accurate  description  of  said  mining 
claim  as  will,  if  incorporated  into  a  patent,  serve  fully  to  identify  the 
premises,  and  that  such  reference  is  made  therein  to  natural  objects  or 
permanent  monuments  as  will  perpetuate  and  fix  the  locus  thereof. 

And  I  further  certify  that  five  hundred  dollars'  worth  of  labor  has 
been  expended  or  improvements  made  upon  or  for  the  benefit  of  each  of 
the  lode  locations  embraced  in  said  mining  claim  by  claimant  or  his 
grantors,  and  that  said  improvements  consist  of  six  shafts  and  a  tunnel, 
as  appears  by  the  affidavit  of  the  mineral  surveyor,  and  that  no  portion 
of  or  interest  in  said  labor  or  improvements  has  been  included  in  the 
estimate  of  expenditures  upon  any  other  claim. 

I  further  certify  that  the  plat  thereof,  filed  in  the  U.  S.  Land  Office 
at  Denver,  is  correct  and  in  conformity  with  the  foregoing  Field  Notes. 

JOHN  B.  MCGAUBAN, 
U.  S.  Surveyor  General  for  Colorado. 

These  matters  are  all  preliminary  to  the  application  for 
patent  proper  which  is  made  to  the  local  land  office,  these  pro- 
ceedings in  the  Surveyor  General's  office  being  necessary 
because  each  lode  claim  must  be  separately  surveyed,  whereas 
in  case  of  agricultural  land  a  party  simply  enters  upon  a  par- 
ticular quarter  section  which  has  been  already  surveyed  and 
platted. 

Delivery  of  Papers  to  the  Attorney. 

The  above  transcript  "H"  received  from  the  Surveyor  Gen- 
eral which  is  generally  termed  the  "Approved  Field  Notes," 
the  claimant  then  delivers,  along  with  the  plats  or  diagrams 
received  from  the  same  office,  to  his  attorney,  who  is  supposed 
to  supervise  the  signing  and  filing  of  all  the  subsequent  papers, 
and  takes  charge  of  the  application  from  this  point. 

Respective  Duties  of  Surveyor  and  Attorney. 

The  U.  S.  Mineral  surveyors  are  not  allowed  to  act  as  attor-, 
neys. — Ruie  128.  The  surveyor's  services  seem  properly  to 
end  with  the  preparation  of  papers  for  the  Surveyor  Gen- 
eral's office,  Par.  12,  Cir.  p.  538.  The  attorney  makes  out  and 


APPLICATION  FOR  PATENT.  557 

supervises  all  papers  intended  for  the  land  office.  The  sur- 
veyor's aid  should  not,  however,  be  discarded  pending  the 
application,  as  with  many  of  the  forms  he  is  more  familiar 
than  attorneys  generally  are.  The  profession  ought  not  to 
object  to  surveyors  filling  out  the  ordinary  blanks,  especially  in 
cases  where  no  adverse  claim  is  expected,  nor  to  their  attend- 
ing to  posting,  publication,  proofs  of  citizenship,  etc.,  if  they 
will  not  attempt  to  make  out  the  location  and  relocation  cer- 
tificates— which  are  strictly  legal  papers — the  interference  of 
the  surveyors  in  these  matters  generally  leaving  applicants 
in  a  position  where  they  seriously  need  an  attorney's  advice, 
if  not  already  too  late  to  be  of  service.  And  in  case  of  land 
office  contest  any  interference  by  the  surveyor  would  be 
officious  and  reprehensible. 

The  claimant  or  his  attorney  then  prepares  five  copies  of 
"K":  One  for  posting  on  the  lode  claim,  one  on  the  mill  site, 
one  to  be  attached  to  proof  of  posting,  one  for  publication  in 
newspaper  and  one  for  posting  in  Land  Office, 

K.     NOTICE  OF  APPLICATION  FOR  U.  S.  PATENT. 
SUEVEY  NO.  21000  A.  AND  B. 

U.  S.  LAND  OFFICE,  Denver,  Colo.,  April  15,  1916. 
Notice  is  hereby  given  that  in  pursuance  of  an  Act  of  Congress, 
approved  May  10,  1872,  Carroll  Carter,  whose  postoffice  address  is  Denver, 
Colorado,  has  made  application  for  a  patent  for  1500  linear  feet  on  the 
Busy  Bee  and  Republican  lodes  respectively,  bearing  gold  and  silver,  the 
same  being  835  feet  southwesterly  and  665  feet  northeasterly  on  said 
Busy  Bee  lode,  and  750  feet  easterly  and  750  feet  westerly  on  said  Repub- 
lican lode,  from  the  respective  discovery  shafts  thereon,  with  surface 
ground  150  feet  in  width  on  each  of  said  lodes,  and  for  the  Republican 
mill  site,  all  situate  in  Wisconsin  mining  district,  Gilpin  County,  State  of 
Colorado,  and  described  by  the  official  plat  and  by  the  field  notes  on  file 
in  the  office  of  the  register  of  Denver  land  district,  Colorado,  as  follows, 
viz: 

BUSY  BEE  LODE,  SURVEY  NO.  21000  A. 

Beginning  at  corner  No.  1,  whence  the  S.  *4  Cor.  Sec.  24,  T.  2  S.,  B.  74 
W.  of  the  6th  P.  M.,  bears  S.  26°  2'  30"  W.  853.47  feet. 

Cor.  No.  1,  Sur.  No.  19999,  Climax  lode,  claimant  unknown,  bears  8. 
25°  35'  10"  E.  508.79  feet. 


558  APPLICATION  FOE  PATENT. 

Thence  S.  51°  8'  W.  1500  feet  to  Cor.  No.  2.  Thenee  N.  38°  52'  W. 
146.10  feet  to  Witness  corner  to  Cor.  No.  3,  same  course,  150  feet  to  Cor. 
No.  3  (not  set  because  it  falls  in  center  of  Mosquito  Creek).  Thence  N. 
51°  8'  E.  1500  feet  to  Cor.  No.  4.  Thence  S.  38°  52'  E.  150  feet  to  Cor. 
No.  1,  the  place  of  beginning. 

REPUBLICAN  LODE,  SURVEY  NO.  21000  A. 

Beginning  at  Cor.  No.  1,  whence  the  S.  ^4  Cor.  Sec.  24,  T.  2  S.,  E.  74 
W.  of  the  6th  P.  M.,  bears  S.  74°  1'  50"  W.  630.15  feet. 

Thence  S.  85°  8'  W.  1500  feet  to  Cor.  No.  2.  Thence  N.  4°  52'  W.  150 
feet  to  Cor.  No.  3.  Thence  N.  85°  8'  E.  1500  feet  to  Cor.  No.  4.  Thence 
S.  4°  52'  E.  150  feet  to  Cor.  No.  1,  the  place  of  beginning;  containing 
8.058  acres,  exclusive  of  Sur.  No.  19999,  Climax  lode. 

REPUBLICAN   MILL   SITE,   SURVEY  NO.   21000  B. 

Beginning  at  Cor.  No.  1,  whence  S.  %  Cor.  Sec.  24,  T.  2  S.,  E.  74  W. 
of  the  6th  P.  M.,  bears  S.  49°  15'  20"  W.  207.07  feet.  Thence  S.  85°  8' 
W.  635.14  feet  to  Cor.  No.  2.  Thence  S.  51°  8'  W.  350  feet  to  Cor.  No.  3. 
Thence  S.  38°  52'  E.  355.07  feet  to  Cor.  No.  4.  Thence  N.  51°  8'  E. 
876.56  feet  to  Cor.  No.  1,  the  place  of  beginning,  containing  5  acres. 
Said  claim  forming  a  portion  of  the  S.  %  of  See.  24,  and  the  N.  W.  ^  of 
Sec.  25,  T.  2  S.,  E.  74  W.  of  the  6th  P.  M. 

Adjoining  claim,  as  shown  by  the  plat  of  survey,  is  the  Climax  lode, 
Survey  No.  19,999. 

Date  of  posting  this  notice  on  claim,  April  15,  1916. 

CARROLL  CARTER. 
Witness: 

John  C.  Clark. 
B.  F.  Pinson. 

Naming  Adjoining  Claims. 

The  Regulations  (Rule  39)  require  the  notice  to  give  "the 
names  of  adjoining  and  conflicting  claims  as  shown  by  the 
Plat  of  Survey"— 29  L.  D.  250— and  by  Rules  38  and  149, 
all  conflicts  with  surveyed  claims,  and  with  unsurveyed  claims 
intended  to  be  excluded,  are  required  to  be  shown  in  the  field 
notes. 

If  the  notice  is  defective,  as  by  insufficient  description,  the 
entry  will  be  canceled.— 31  L.  D.  415 ;  37  L.  D.  365. 

One  of  the  notices  ' '  K "  should  be  at  once  posted  on  one  of 
the  lode  claims,  along  with  one  of  the  certified  diagrams 


APPLICATION  FOE  PATENT.  559 

received  from  the  Surveyor  General,  and  a  second  notice  "K" 
and  a  second  diagram  should  be  posted  on  the  mill  site;  the 
notice  and  plat  being  loosely  attached,  or,  as  more  usual, 
placed  side  by  side,  in  some  conspicuous  place  on  the  claim 
in  presence  of  two  persons  who  attach  their  signatures  as 
shown  upon  form  "K." 

Separate  posting  of  the  notice  and  plat  on  the  mill  site  is 
required  by  Rule  63. 

Where  two  contiguous  mill  sites  are  applied  for,  a  single 
notice  on  one  of  them  is  sufficient.  40  L.  D.  313. 

Another  of  the  notices  "K"  is  attached  to 

L.  PROOF  OF  POSTING  NOTICE  AND  DIAGRAM  ON  THE  CLAIM. 

STATE  OF  COLORADO,         |  • 

City  and  County  of  Denver,   j 

John  C.  Clark  and  B.  F.  Pinson,  each  for  himself,  and  not  one  for  the 
other,  being  first  duly  sworn  according  to  law,  deposes  and  says,  that  he  is 
a  citizen  of  the  United  States,  over  the  age  of  twenty-one  years,  and  was 
present  on  the  14th  day  of  April,  1916,  when  a  plat  representing  the  claim 
of  Carroll  Carter,  and  certified  as  correct  by  the  United  States  Surveyor 
General  of  Colorado,  and  designated  by  him  as  lot  No.  21000  A.  and  B. 
together  with  a  notice  of  the  intention  of  said  Carroll  Carter  to  apply  for 
a  patent  for  the  mining  claim  and  premises  so  platted  was  posted  in  a 
conspicuous  place  upon  said  mining  claim  and  mill  site,  to  wit:  at  the 
mouth  of  the  tunnel  on  the  Busy  Bee  lode  and  on  the  outside  of  the  door 
of  the  mill  on  said  mill  site,  where  the  same  could  be  easily  seen  and 
examined.  A  copy  of  the  notice  so  posted  upon  said  claim,  and  upon  said 
mill  site,  is  herewith  attached  and  made  a  part  of  this  affidavit. 

JOHN  C.  CLARK, 
B.  F.  PINSON. 

Subscribed  and  sworn  to  before  me  this  16th  day  of  April,  A.  D.  1916, 
and  I  hereby  certify  that  I  consider  the  above  deponents  credible  and 
reliable  witnesses,  and  that  the  foregoing  affidavit  and  the  attached  notice 
were  read  by  each  of  them  before  their  signatures  were  affixed  thereto, 
and  the  oath  made  by  them. 

My  commission  expires  March  4,  1918.  ALICE  HATCH, 

(SEAL)  Notary  Public. 

Rulings  as  to  Posting. 

The  notice  "K"  must  remain  posted  on  the  land  office  bul- 
letin during  the  whole  period  of  sixty  days — and  the  60  days 


560        .  APPLICATION  FOR  PATENT. 

do  not  begin  to  run  until  it  is  posted. — 1  L.  D.  584,  Rev.  Ed. 
572,  5  L.  D.  510. 

Posting  notice  inside  an  open  shaft  house  or  on  the  shaft 
house  held  to  be  in  a  "conspicuous  place." — 9  L.  0.  113,  22 
Lr  D.  624;  enclosing  notice  and  plat  in  oil-cloth  envelope, 
although  appropriately  marked  and  tacked  to  a  board  over 
an  open  cut,  held  not  to  comply  with  the  statute. — 36  L.  D. 
199,  over-ruling  33  L.  D.  238;  placing  notice  in  a  box  on  the 
ground  among  large  boulders  and  not  near  shaft,  held  not  a 
conspicuous  place. — 21  L.  D.  336. 

The  form  "L"  is  subscribed  and  sworn  to  by  at  least  two 
posting  witnesses.  The  applicant  does  not  sign  it,  and  should 
not  be  one  of  the  two  witnesses. 

If  the  affidavit  filed  is  defective  because  sworn  to  out  of  the 
land  district,  it  can  not  be  cured  by  the  subsequent  filing  of  a 
properly  verified  affidavit. — 37  L.  D.  155. 

Where  the  notice  was  posted  outside  the  claim  the  entry 
was  canceled.  43  L.  D.  396. 

The  fourth  notice  "K,"  signed  by  the  applicant,  but  not 
by  the  witnesses,  goes  with  the  third  of  the  plats  received 
from  the  Surveyor  General  (page  554),  when  it  is  sent  with 
the  first  set  of  papers  to  the  land  office,  where  the  register 
attaches  his  attesting  signature,  and  it  will  remain  posted 
in  the  land  office,  while  its  fellow  notice  and  plat  are  standing 
on  the  claim  during  the  period  of  publication  of  the  fifth 
notice  "K." 

The  next  paper  to  be  prepared  is  the 

M.  APPLICATION  FOE  PATENT. 
STATE  OF  COLORADO,        ) 
City  and  County  of  Denver,   j 

Application  for  patent  for  the  Busy  See  and  Republican  lode  mining 
claims  and  the  Republican  mill  site. 

To  the  Register  and  Receiver  of  the  IT.  S.  Land  Office  at  Denver,  Colo- 
rado : 

Carroll  Carter,  whose  P.  O.  address  is  Denver,  Colorado,  being  duly 
sworn  according  to  law,  deposes  and  says  that  in  virtue  of  a  com- 
pliance with  the  mining  rules,  regulations  and  customs,  by  himself  and 
his  grantors,  he,  the  applicant  for  patent  herein,  has  become  the  owner 


APPLICATION  FOR  PATENT.  561 

of  and  is  in  the  actual,  quiet  and  undisturbed  possession  of  1500 
linear  feet  respectively  of  the  Busy  Bee  and  Republican  veins,  lodes  or 
deposits,  bearing  gold  and  silver,  together  with  surface  ground  150  feet  in 
width  on  each  of  said  lodes  for  the  convenient  working  thereof  and 
ihe  Republican  mill  site  containing  five  acres  as  allowed  by  local  rules 
and  customs  of  miners,  said  mineral  claims,  veins,  lodes  or  deposits  and 
surface  ground  being  situate  in  Wisconsin  Mining  District,  county  of 
Gilpin  and  State  of  Colorado,  and  being  more  particularly  set  forth  and 
described  in  the  official  field  notes  of  survey  thereof,  hereto  attached, 
dated  April  5,  A.  D.  1916,  and  in  the  official  plat  of  said  survey,  now 
posted  conspicuously  upon  said  mining  claim  or  premises,  a  copy  of  which 
is  filed  herewith.  Deponent  further  states  that  the  facts  relative  to  the 
right  of  possession  of  himself,  to  said  mining  claims,  veins,  lodes  or 
deposits  and  surface  ground  and  said  mill  site  so  surveyed  and  platted 
are  substantially  as  follows,  to  wit : 

The  Busy  Bee  and  Republican  lodes  and  said  mill  site  were  located  on 
June  23,  1894,  September  15,  1900,  and  October  25,  1905,  respectively,  by 
James  A.  McFadden,  who  located  the  same  as  mining  claims  and  as  a 
mill  site  of  the  length,  width  and  surface  ground  aforesaid  in  full  com- 
pliance with  all  local  rules  and  regulations,  the  laws  of  the  State  of 
Colorado  and  of  the  United  States  relating  to  mining  claims. 

The  said  discoverer  and  locator  conveyed  all  his  interest  in  the  claim  to 
Chas.  0.  Baxter  and  Frank  M.  Taylor,  who  by  divers  intermediate  con- 
veyances transferred  the  same  to  applicant,  who  thereupon  took  possession 
and  is  the  sole  present  owner,  which  will  more  fully  appear  by  reference 
to  the  copy  of  the  original  record  of  location  and  the  abstract  of  title 
herewith  filed; 

The  value  of  the  labor  done  and  improvements  made  upon  or  for  the 
benefit  of  each  of  the  lode  locations  embraced  in  said  mining  claims  by 
the  applicant  and  his  grantors  being  equal  to  the  sum  of  five  hundred 
dollars ;  said  improvements  consist  of  six  shafts  and  a  tunnel,  but  expressly 
excepting  and  excluding  from  this  application  all  that  portion  of  the 
ground  embraced  in  mining  claim  or  survey  designated  as  lot  No.  19,999, 
Climax  lode. 

That  the  veins  in  said  lodes  are  well  defined  quartz  veins  in  granite 
and  are  disclosed  in  their  respective  discovery  shafts  and  in  the  tunnel 
which  has  been  run  to  cut  said  lodes.  The  mineral  contained  in  said  veins 
is  gold  and  silver  bearing.  About  100  tons  of  ore  have  been  extracted 
from  the  vein  on  said  Busy  Bee  lode,  yielding  a  value  of  $10  per  ton  and 
a  like  quantity  of  ore  has  been  extracted  from  the  vein  on  the  Republican 
lode  yielding  a  value  of  $15  per  ton.  That  a  fifty-stamp  mill  has  been 
erected  on  said  mill  site  for  the  purpose  of  treating  the  ores  to  be 
extracted  from  said  lode  claims. 

In  consideration  of  which  facts,  and  in  conformity  with  the  provisions 
of  Chapter  six  of  Title  thirty-two  of  the  Revised  Statutes  of  the  United 


562  APPLICATION  FOB  PATENT. 

States,  application  is  hereby  made  for  and  in  behalf  of  said  Carroll  Carter 
for  a  patent  from  the  United  States  for  the  said  Busy  Bee  and  Republican 
mining  claims,  veins,  lodes,  deposits  and  the  surface  ground  so  officially 
surveyed  and  platted  and  the  said  Republican  mill  site. 

CARROLL  CARTER. 

Subscribed  and  sworn  to  before  me  this  17th  day  of  April,  A.  D.  1916, 
and  I  hereby  certify  that  the  foregoing  affidavit,  to  which  was  attached 
the  field  notes  of  survey  of  the-said  Republican  mill  site  and  Busy  Bee 
and  Republican  mining  claims,  was  read  and  examined  by  him  before  his 
signature  was  affixed  thereto  and  the  oath  made  by  him. 

My  commission  expires  March  4,  1918.  ALICE  HATCH, 

(SEAL)  Notary  Public. 

Where  an  application  is  filed  in  the  land  office  without 
proof  that  the  plat  and  notice  have  been  posted  on  the  claim 
as  required  by  E.  S.  Sec.  2325,  such  application  has  been  held 
void.— 1  L.  D.  557,  Rev.  Ed.  545,  34  L.  D.  583. 

This  application  "M"  is  attached  to  the  transcript  "H," 
commonly  styled  "The  Approved  Field  Notes." 

At  the  same  time  there  should  be  prepared: 

N.— The  abstract  of  Title. 

0. — The  proof  of  citizenship. 

P. — The  publisher's  agreement. 

Q. — The  publication  notice. 

Z. — The  non-mineral  affidavit  for  mill  site,  page  581. 

AA. — The  proof  of  mill  site  used  for  mining  or  milling  pur- 
poses.— Page  581. 

These  papers  with  those  already  referred  to  complete  the 
first  set  of  papers,  to- wit : 

N.  ABSTRACT  OF  TITLE. 

STATE  OF  COLORADO,  >  gg 
County  of  Gilpin.     ) 

I,  Frank  G.  Moody,  Clerk  and  ex  officio  Eecorder  of  said  County,  do 
hereby  certify  that  the  foregoing  is  a  true,  full  and  correct  abstract  of 
title  of  the  Busy  Bee  and  Republican  lodes  and  the  Republican  mill  site 
therein  described,  as  the  same  appears  of  record  in  my  office,  and  shows 
all  location  certificates,  deeds  or  other  instruments  appearing  of  record 
purporting  to  convey  or  affect  the  same. 

Witness  my  hand  and  the  seal  of  said  County,  this  16th  day  of  April, 
A.  D.  1916.  FRANK  G.  MOODY, 

(COUNTY  SEAL)  Recorder. 


APPLICATION  FOE  PATENT.  563 

It  should  contain  a  memorandum  of  the  location  certificates, 
including  any  amended  location  certificates,  and  the  usual 
memoranda  of  the  deeds  and  other  instruments  appearing  of 
record  in  his  office,  and  should  be  brought  down  to  a  date  rea- 
sonably near  the  date  of  presenting  the  application,  and  should 
be  certified  to  by  the  Recorder  or  an  abstract  company.  As 
soon  as  practicable  a  supplementary  abstract  to  include  the 
date  of  filing  the  application  must  be  filed  before  publication 
will  be  ordered.  Rule  42. 

The  abstract  often  contains  copies  of  the  location  certificates, 
and  in  such  case  the  Recorder 's  certificate  should  be  varied  to 
state  that  it  contains  true  copies  thereof;  but  the  better  prac- 
tice is  to  mail  with  the  application  papers,  certified  copies  of 
the  location  certificates  separately,  and  the  abstract  proper, 
in  such  case  will  contain  only  the  memorandum  of  the  location 
certificate  with  names,  dates,  etc.,  in  the  same  manner  as  the 
memoranda  of  the  separate  deeds. 

When  the  applicant  for  patent  is  the  original  locator  him- 
self (and  there  have  been  no  transfers  of  title),  he  should  file 
as  his  abstract,  a  copy  of  his  location  certificates  certified  as 
follows : 

STATE  OF  COLORADO, 
County  of  Gilpin. 

I,  Frank  G.  Moody,  Clerk  and  ex  officio  Recorder  of  said  County,  do 
hereby  certify  that  the  foregoing  is  a  full,  true  and  correct  abstract  of 
the  title  to  the  Busy  Bee  and  Republican  lodes  and  the  Republican  mill 
site  therein  described,  as  the  same  appears  of  record  in  said  office,  and 
that  there  are  no  deeds  or  other  instruments  appearing  of  record  purport- 
ing to  convey  or  affect  the  same  except  the  certificates  of  location  of 
which  the  foregoing  are  true  copies. 

Witness  my  hand,  etc.,  as  above. 

The  Abstract  Should  Show  Title  in  Applicant. 

Rule  42.  If  it  show  title  in  several  co-owners,  all  such  co- 
owners  should  join  as  applicants.  If  it  show  a  co-owner  with- 
out interest  in  one  or  more  claims  of  a  group,  the  proceedings 
are  a  nullity  as  to  such  claims. — 32  L.  D.  217.  If  it  show  that 
there  were  co-owners  who  had  been  forfeited  out  for  non-per- 


564  APPLICATION  FOB  PATENT. 

formance  of  annual  labor,  this  is  considered  equivalent  to  an 
abstract  showing  transfer  by  deed  from  them  to  the  applicant. 
A  break  in  the  chain  of  title  behind  a  relocation  made  in  the 
usual  form  to  take  up  abandoned  claims  may  be  disregarded. 
— 10  L.  0. 119.  But  the  department  will  take  notice  of  a  void 
sheriff's  deed  or  other  break  in  the  title  asserted  and  relied  on 
by  the  applicant. — 21  L.  D;  544.  Where  the  names  of  co-ten- 
ants are  inadvertently  omitted  in  the  application  they  have 
been  allowed  to  be  supplied  and  the  patent  issued  to  all. — 10 
L.  0.  206 ;  but  this  is  irregular. 

Where  the  entire  title  is  not  in  claimant  at  the  time  of  appli- 
cation, the  entry  may  stand  if  he  subsequently  acquire  com- 
plete title.— 26  L.  D.  484,  37  L.  D.  715. 

When  some  of  the  applicants  are  without  interest,  they  will 
be  permitted  to  acquire  title  subsequent  to  entry. — 29  L.  D. 
208. 

O.     PROOF  OP  CITIZENSHIP. 

STATE  or  COLORADO, 
City  and  County  of  Denver, 

Carroll  Carter,  being  first  duly  sworn  according  to  law,  deposes  and 
says  that  he  is  the  applicant  for  patent  for  the  Busy  Bee  and  Republican 
lode  mining  claims  and  the  Republican  mill  site,  situate  in  Gilpin  Mining 
District,  County  of  Denver,  State  of  Colorado;  (*)  that  he  is  a  native  born 

citizen  of  the  United  States,  born  in  the  County  of ,  State 

of ,  in  the  year ,  and  is  now  a  resident  of  Denver, 

State  of  Colorado.  CARROLL  CARTER. 

Subscribed  and  sworn  to  before  me  this  16th  day  of  April,  A.  D.  1916. 

My  commission  expires  March  4,  1918.  ALICE  HATCH, 

(SEAL)  Notary  Public. 

When  the  applicant  is  not  a  native  citizen  the  form  after  the 
(*)  will  proceed: 

That  he  is  a  naturalized  citizen  of  the  United  States ;  took  out  his  final 
naturalization  papers  in  the  Circuit  Court  of  the  United  States  at  Denver, 
Colorado,  on  the  first  day  of  May,  1900,  and  is  now  a  resident  of  Denver, 
State  of  Colorado. 

If  the  applicant  has  not  taken  out  his  final  papers,  it  will 
show,  as  required  by  Rule  68,  when,  where,  and  in  what  Court 
he  took  out  his  first  papers : 


APPLICATION  FOB  PATENT.  565 

That  he  declared  his  intention  of  becoming  a  citizen  of  the  United 
States  in  the  Circuit  Court  of  the  United  States,  at  Denver,  Colorado,  on 
the  first  day  of  May,  1899,  and  is  now  a  resident  of  Cheyenne,  State  of 
Wyoming. 

If  the  applicant  claims  under  his  father's  naturalization,  it 
will  proceed: 

That  he  is  a  naturalized  citizen  of  the  United  States,  born  in  the 
Republic  of  Peru,  and  that  he  came  to  the  United  States,  a  minor,  under 
the  age  of  21  years,  and  has  ever  since  resided  in  the  United  States,  and 
that  his  father  took  out  his  final  papers  and  became  a  naturalized  citizen 
of  the  United  States  during  the  minority  of  affiant,  whereby  affiant 
became  a  naturalized  citizen  under  the  terms  of  section  2172  of  the 
Revised  Statutes  of  the  United  States,  and  is  now  a  resident  of  Aspen, 
County  of  Pitkin,  State  of  Colorado. 

Serving  in  the  army  or  navy  does  not  complete  citizenship  of 
itself.  Soldiers  must  comply  with  Sec.  2166  and  sailors  with 
Sec.  2174  of  the  Revised  Statutes,  or  28  Stat.  L.,  p.  124. 

"Where  there  are  several  applicants  each  makes  his  own  affi- 
davit of  citizenship. 

Affidavit,  Where  Made. 

By  Act  of  April  26,  1882,  the  affidavit  of  citizenship,  where 
the  applicant  resides  outside  of  the  land  district,  may  be  made 
anywhere  in  the  United  States,  before  any  notary  or  Clerk  of 
Court  of  Record  where  the  applicant  may  reside  or  happen  to 
be  found. 

Proof  by  Two  Witnesses. 

When  the  affidavit  of  the  applicant  can  not  be  procured  the 
land  office  will  allow  proof  of  his  citizenship  by  the  affidavits 
of  two  disinterested  witnesses. — Rule  70. 

Citizenship  of  Corporation. 

A  corporation  must  file  a  copy  of  its  charter  or  articles  of 
association,  certified  to  by  the  Secretary  of  State  of  the  State 
within  which  it  is  operating,  whether  it  be  a  domestic  corpora- 
tion or  a  corporation  of  some  other  State  doing  business  in  that 
State.— Rule  66,  27  L.  D.  351. 


666  APPLICATION  FOB  PATENT. 

Or  it  may  file  a  "Certificate  of  Incorporation"  and  the 
Land  Office  will  not  pass  on  the  point  that  it  is  not  by  its  arti- 
cles a  corporation  which  could  lawfully  take  title  to  mineral 
lands.— 20  L.  D.  116,  22  L.  D.  83. 

In  an  adverse  claim  suit  a  corporation  need  not  prove  the 
citizenship  of  its  stockholders. — Duncan  v.  Eagle  Rock  Co.,  48 
Colo.  569, 139  Am.  St.  Rep.  288,  111  P.  588. 

Entry  secured  by  fraudulently  suppressing  the  fact  that  it 
was  for  the  benefit  of  an  alien  corporation  will  be  canceled  and 
purchase  price  will  not  be  refunded. — 20  L.  D.  379. 

Proof  of  Non-Abandonment. 

By  circular  of  the  General  Land  Office  of  March  24,  1887,  8 
L.  D.  505,  it  was  ruled  that  the  register  should  require  upon 
each  application  satisfactory  proof  of  compliance  with  the 
annual  labor  law ;  but  since  the  revision  of  1901  such  proof  is 
no  longer  required  and  the  question  is  left  by  the  department 
to  be  settled  by  adverse  claimants  in  the  courts. — Rule  55,  29 
L.  D.  302,  401,  31  Id.  69.  But  a  delay  to  make  entry  until 
beyond  the  end  of  the  calendar  year  after  publication,  held 
fatal  to  the  entry,  where  relocation  for  failure  to  do  annual 
labor  is  alleged  by  protest.— 31  L.  D.  69. 

P.    PUBLISHER'S  CONTRACT. 

I,  the  undersigned,  publisher  and  proprietor  of  the  Weekly  Register 
Call,  a  weekly  newspaper  published  in  Central  City,  Gilpin  County,  State 
of  Colorado,  hereby  agree  to  publish  a  notice  dated  U.  S.  Land  Office, 
Denver,  Colo.,  April  15,  1916,  required  by  Act  of  Congress,  approved 
May  10th,  1872,  of  the  intention  of  Carroll  Carter  to  apply  for  a  patent 
for  his  claim  on  the  Busy  Bee  and  Republican  Lode  and  Mill  Site,  situate 
in  Wisconsin  Mining  District,  County  of  Gilpin,  State  aforesaid,  and  to 
hold  the  said  Carroll  Carter  alone  responsible  for  the  amount  of  our  bill 
for  publishing  the  same. 

And  it  is  hereby  expressly  stipulated  and  agreed  that  no  claim  shall  be 
made  against  the  government  of  the  United  States,  or  its  officers  or 
agents,  for  such  publication. 

Witness  my  hand  this  16th  day  of  April,  A.  D.  1916. 

G.  M.  LAIRD,  Publisher. 


APPLICATION  FOB  PATENT.  667 

In  What  Newspaper. 

The  notice  must  be  published  in  a  newspaper  to  be  by  the 
Register  designated  as  published  nearest  to  the  claim. — R.  S., 
Sec.  2325,  14  L.  D.  138.  When  there  are  two  or  more  in  the 
nearest  town,  either  may  be  designated. — 2  L.  D.  758,  40  L.  D. 
190;  Cameron  v.  Seaman,  13  M.  R.  584,  69  N.  Y.  396,  25  Am. 
Rep.  212.  The  practice  of  the  Register,  where  two  or  more 
local  papers  in  the  same  town  are  published,  is  to  designate 
that  one  which  the  attorney  may  suggest.  The  distance  is  to 
be  calculated  not  by  an  air  line,  but  by  the  most  usually  trav- 
eled route.  The  language  of  the  act  allows  much  discretion  in 
the  designation  of  the  newspaper. — 17  L.  D.  560,  26  Id.  145,  34 
Id.  281.  But  this  discretionary  power  is  subject  to  review  by 
the  department.— 32  L.  D.  359,  611. 

The  notice  must  be  continued  in  the  same  paper  and  can  not 
be  shifted  from  the  daily  to  the  weekly  edition. — 3  L.  0. 18. 

What  Constitutes  a  Newspaper. 

It  must  be  a  reputable  newspaper  of  general  circulation. — 2 
L.  D.  205,  758.  The  Register  has  a  discretion  in  deciding 
what  constitutes  such  a  newspaper. — 10  L.  D.  655,  26  Id.  145. 

Q.      PUBLICATION  NOTICE. 

This  is  verbatim  the  same  as  "K"  and  amounts  to  a  fifth 
copy  of  ' '  K, "  except  that  it  is  not  signed  by  the  applicant  nor 
by  the  witnesses  but  is  forwarded  in  blank  to  the  land  office, 
where  it  receives  the  application  number,  is  signed  by  the  Reg- 
ister and  returned  by  him  to  the  attorney  for  claimant  or  direct 
to  the  printer. 

It  usually  contains  at  the  foot  the  dates  of  the  first  and  last 
publications;  but  erroneous  statement  of  last  date  will  not 
excuse  failure  to  file  adverse  within  statutory  period. — 25  L.  D. 
550. 

Manner  and  Period  of  Publication. 

The  notice  "Q"  must  be  published  for  61  days  in  a  daily,  or 
nine  consecutive  times  in  a  weekly  paper.— 29  L.  D.  230,  Rule 


568  APPLICATION  FOB  PATENT. 

45 ;  and  while  the  notice  is  going  through  its  newspaper  pub- 
lication, it  also  stands  posted  on  the  claim,  and  tacked  to  the 
bulletin  of  the  land  office.  Each  of  these  methods  of  publica- 
tion is  mandatory  and  essential.  See  p.  574. 

Publication  once  each  week  in  a  tri- weekly  paper,  is  not  suf- 
ficient—41  L.  D.  369. 

Z.      NON-MINERAL  AFFIDAVIT. 

The  non-mineral  character  of  the  mill  site  must  be  shown 
by  the  affidavit  of  two  or  more  disinterested  persons. — Rule  65. 
For  form  of  affidavit  see  p.  581. 

AA.      PROOF  OF  SITE  USED  FOR  MINING  OR  MILLING  PURPOSES. 

Proof  that  the  mill  site  is  used  for  mining  or  milling  pur- 
poses is  specially  required  by  the  department. — 32  L.  D.  128, 
34  L.  D.  325.  Proof  is  mad^  by  the  affidavit  of  the  claimant 
and  two  disinterested  witnesses.  For  form  see  p.  581.  As  to 
what  is  sufficient  use  see  p.  297. 

First  Set  or  "Application"  Papers. 

The  above  mentioned  papers,  constituting  the  following  list, 
to-wit : 

F. — The  final  plat — one  copy. 

H. — The  approved  field  notes. 

K. — The  copy  intended  for  posting  in  land  office. 

K. — Second  copy  with  "L"  proof  of  posting  attached. 

M. — Application  for  patent. 

N.— Abstract  of  title. 

0. — Proof  of  citizenship. 

P. — Publisher's  agreement  

Q. — Publication  notice. 

Z. — Non-mineral  affidavit. 

AA. — Proof  of  use — which  complete  the  first  set  of  papers 
commonly  called  the  "application  papers,"  are  all  forwarded 
at  one  time  by  the  attorney  to  the  local  land  office. 

Upon  receipt  of  the  application  papers,  accompanied  by  the 
filing  fee  of  ten  dollars,  the  Register  gives  the  papers  an  appli- 


APPLICATION  FOR  PATENT,  569 

.; 

cation  number,  makes  a  record  of  the  application  in  the  nature 
of  an  index,  attests  the  posting  of  notice  "K"  in  his  office, 
affixing  the  date,  and  returns  to  the  attorney  for  claimant  the 
notice  for  publication  "Q"  headed  with  the  application  num- 
ber, or  sends  it  direct  to  the  proper  paper  for  publication. 
The  return  of  the  publication  notice  to  the  attorney  or  paper 
is  an  implied  approval  of  the  publisher's  contract  and  a  suf- 
ficient designation  of  that  paper. 

RECAPITULATION1. 

It  may  be  convenient  to  review  the  proceedings  at  this  point. 
The  papers  A  to  I,  inclusive,  have  performed  their  office. 

A,  the  request  for  survey;  C,  the  preliminary  plat;  D,  the 
field  notes,  and  F,  the  final  plat,  remain  with  the  surveyor 
general. 

B,  the  order  for  survey,  remains' in  the  hands  of  the  sur- 
veyor, being  his  voucher  against  the  applicant  for  the  work 
done  under  it. 

E,  G  and  I  are  mere  certificates  indorsed  on  other  papers. 

The  transcript  H  (the  approved  field  notes),  has  been 
attached  to  the  application  M,  and  both  mailed  to  the  local 
land  office. 

One  copy  of  the  plat  F  has  been  forwarded  by  the  Surveyor 
General  to  the  local  land  office  to  be  kept  on  file;  one  copy" 
has  been  posted  on  the  lode  claim,  and  one  on  the  mill  site, 
and  one  copy  forwarded  to  the  local  land  office  as  one  of  the 
application  papers. 

One  of  the  notices  K  has  been  posted  on  the  lode  claim,  and 
one  on  the  mill  site;  one  has  been  attached  to  the  proof 
of  posting ;  one  has  been  posted  in  the  land  office,  and  one,  Q, 
remains  to  be  published  or  is  being  published. 

L,  the  proof  of  posting;  M,  the  application;  P,  the  pub- 
lisher's agreement,  and  Z  and  AA,  the  mill  site  proofs,  have 
been  filed  in  the  land  office. 

N,  the  abstract  has  been  filed  and  0,  the  proof  of  citizen- 
ship, if  not  yet  filed  may  be  filed  at  any  time  pending  the  pub- 
lication. 


570  APPLICATION  FOR  PATENT. 

The  Second  Set  or  "Final  Entry"  Papers  Which  Remain  to 
be  filed  after  the  publication  is  complete,  consist  of : 

R. — Proof  of  continuous  posting. 

S. — Proof  of  publication. 

T. — Proof  of  sums  paid. 

U. — Application  to  purchase. 

When  the  period  of  publication  is  complete,  proofs  of  the 
notice  having  remained  on  the  claim  and  of  the  publication 
are  made  as  follows : 

B.      PROOF   THAT   PLAT    AND    NOTICE    REMAINED    POSTED    ON    CLAIM    DURING 
TIME  OF  PUBLICATION. 

STATE  OF  COLORADO,          ) 
City  and  County  of  Denver,  j 

Carroll  Carter,  being  first  duly  sworn  according  to  law,  deposes  and 
says,  that  he  is  the  claimant  of  the  Busy  ~Bee  and  Republican  lodes,  and 
mill  site,  Wisconsin  Mining  District,  Gilpin  County,  State  of  Colorado, 
official  plats  of  which  premises  together  with  notices  of  his  intention  to 
apply  for  a  patent  therefor  were  posted  thereon,  on  the  14th  day  of  April, 
A.  D.  1916,  as  fully  set  forth  and  described  in  the  affidavit  of  John  C. 
Clark  and  B.  F.  Pinson,  dated  the  16th  day  of  April,  1916,  which  affidavit 
was  duly  filed  in  the  office  of  the  Register,  at  Denver,  in  this  State;  and 
that  the  plats  and  notices  so  mentioned  and  described,  remained  contin- 
uously and  conspicuously  posted  upon  said  mining  claim  and  upon  said 
mill  site  from  the  14th  day  of  April,  A.  D.  1916,  until  and  including  the 
19th  day  of  June,  A.  D.  1916,  including  the  sixty  days'  period  during 
which  notice  of  said  application  for  patent  was  published  in  the  news- 
paper. CARROLL  CARTER. 

Subscribed  and  sworn  to  before  me  this  20th  day  of  June,  A.  D.  1916, 
and  I  hereby  certify  that  the  foregoing  affidavit  was  read  to  the  said 
Carroll  Carter,  previous  to  his  name  being  subscribed  thereto. 

My  commission  expires  March  4,  1918.  ALICE  HATCH, 

(SEAL)  Notary  Public. 

This  affidavit  of  continuous  posting  the  claimant  may  make 
from  information  derived  from  hearsay. — 9  L.  D.  503. 

When  the  posted  notice  has  been  destroyed  the  department 
requires  a  new  posting  and  a  repetition  of  the  publication 
de  novo.  37  L.  D.  365.  Batterton  v.  Douglas  Co.,  20  Ida.  763, 
38  L.  R.  A.  (N.  S.)  1121,  120  P.  827. 


APPLICATION  FOR  PATENT. 


571 


(Copy  of 
publication   notice 

cutTfrom 

paper  and  pasted 
here.) 


The  publisher 's  re- 
ceipted bill  is  com- 
monly attached  to 
this  blank. 


8.     CERTIFICATE  OF  PUBLICATION. 

I,  G.  M.  Laird,  do  certify  that  I  am  Publisher  of 
the  Weekly  Register  Call,  a  weekly  newspaper  pub- 
lished in  Central  City,  in  the  County  of  Gilpin, 
and  State  of  Colorado,  and  that  the  annexed  notice 
was  published  in  said  paper  once  each  and  every 
week  for  nine  consecutive  weeks,  the  first  publica- 
tion being  on  the  15th  day  of  April,  A.  D.  1916, 
and  the  last  publication  being  on  the  17th  day  of 
June,  A.  D.  1916.  G.  M.  LAIRD. 

Subscribed  and  sworn  to  before  me,  this  20th 
day  of  June,  A.  D.  1916. 

My  commission  expires  March  3,  1920. 
(SEAL)  JAMES  M.  SERIGHT, 

Notary  Public. 


Together  with  these  proofs  of  publication  and  posting,  the 
claimant  forwards,  under  one  of  the  instructions  of  the  depart- 
ment, the  following: 

T.  PROOF  OF  SUMS  PAID.    ' 

STATE  OF  COLORADO,         ) 
City  and  County  of  Denver,  j 

Carroll  Carter,  having  been  first  duly  sworn  according  to  law,  deposes 
and  says  that  he  is  a  citizen  of  the  United  States,  over  the  age  of  twenty- 
one  years;  that  he  is  the  applicant  for  patent  to  the  Busy  Bee  and  Repub- 
lican lodes  and  the  Eepublican  mill  site,  in  Wisconsin  Mining  District, 
Gilpin  County,  Colorado;  that  in  the  prosecution  of  such  application  he 
has  paid  the  following  sums  of  money,  viz.: 

For  office  work  in  the  Surveyor  General 's  office $  70 

To  E.  L.  Chase,  Mineral  Surveyor,  for  surveying  and  platting 125 

To  Eegister  and  Eeceiver,  for  filing  application  in  Land  Office 10 

To  the  Weekly  Eegister  Call,  for  publishing  notice  of  application. . .     20 
To  the  Receiver  of  the  local  Land  Office,  for  land 70 

$265 

CARROLL  CARTER. 

Subscribed  and  sworn  to  before  me  this  20th  day  of  June,  A.  D.  1916. 
My  commission  expires  March  4,  1918.  ALICE  HATCH, 

(SEAL)  Notary  Public. 

These  are  the  official  costs  only;  they  do  not  include  attor- 
ney's fees,  notary's  charges,  nor  cost  of  abstract.  The  total 


572  APPLICATION  FOB  PATENT. 

expense  of  patenting  one  lode,  without  mill  site,  varies  from 
$250  to  $300. 

The  filing  of  this  paper,  T,  completes  the  prerequisites  of 
entry  and  payment  except  the  formal  application  to  purchase, 
U,  and  the  register's  proofs,  V  and  W. 

IT.     APPLICATION  TO  PURCHASE. 

To  the  Register  and  Receiver  United  States  Land  Office,  at  Denver, 
Colorado : 

The  undersigned,  claimant  under  the  provisions  of  the  Revised  Statutes 
of  the  United  States,  Chapter  VI,  Title  32,  and  legislation  supplemental 
thereto,  hereby  applies  to  purchase  that  mining  claim  known  as  the  Busy 
Bee  and  Republican  lodes  and  the  Eepublican  mill  site,  located  in  Sections 
24  and  25,  Township  No.  2  S.,  Range  No.  74,  west  of  the  sixth  principal 
meridian,  designated  as  lot  No.  21000  A  and  B,  said  lot  No.  21000  A 
extending  1,500  feet  in  length  along  each  of  said  lodes,  but  expressly 
excepting  and  excluding  from  this  application  all  that  portion  of  the 
ground  embraced  in  mining  claim  or  survey  designated  as  lot  No.  19999, 
Climax  lode,  and  also  all  that  portion  of  any  vein  or  lode,  the  top  or  apex 
of  which  lies  inside  of  said  excluded  ground,  said  lode  mining  claim 
embracing  8.058  acres  and  said  mill  site  embracing  5  acres  in  the  Wis- 
consin Mining  District,  in  the  County  of  Gilpin,  and  State  of  Colorado, 
as  shown  by  the  survey  thereof,  and  hereby  agrees  to  pay  therefor  seventy 
dollars,  being  the  legal  price  thereof.  CARROLL  CARTER. 

Dated  Denver,  June  20,  1916. 

I,  Mary  Wolf  Dargin,  Register  of  the  land  office  at  Denver,  Colorado, 
do  hereby  certify  that  the  aforesaid  mining  claim  or  lot  No.  21000  A 
and  B  as  applied  for  above,  is  subject  to  entry  by  the  above  named 
applicant;  the  area  of  said  lode  mining  claim  being  8.058  acres  and  of 
said  mill  site  five  acres,  and 'the  legal  price  thereof  seventy  dollars. 

MARY  WOLF  DARGIN, 

June  20,  1916.  Register. 

U  does  not  need  to  be  verified. 

Excluded  Areas. 

The  notice  and  the  application  must  show  what  areas  are  ex- 
cluded and  if  the  entry  be  of  any  such  excluded  areas  a  repub- 
lication  and  posting  will  be  ordered.— 22  L.  D.  711,  28  Id.  436. 

Entry  may  embrace  land  excluded  from  application,  but 
which,  on  adverse  proceedings,  was  awarded  to  the  applicant. 
— 29  L.  D.  71.  May  be  amended  to  include  a  tract  at  first 


APPLICATION  FOR  PATENT.  573 

excluded  on  account  of  defective  title. — 29  Id.  287.  "Will  not 
be  allowed  for  land  embraced  in  a  prior  subsisting  entry. — 
29  Id.  62. 

Entry — Cancellation — Relinquishment. 

Entry  canceled  without  notice  must  be  reinstated. — 23  L.  D. 
113,  31  Id.  51.  Cancellation  does  not  subject  claim  to  relo- 
cation.— 23  Id.  113,  but  republication  and  posting  are  required. 
—29  Id.  470,  31  Id.  37.  Reinstatement  will  not  be  made  when 
entryman  has  filed  adverse  against  subsequent  application. — 
26  Id.  608.  Entry  may  stand  on  proper  proof  where  title 
is  subsequently  acquired. — 29  Id.  208.  Entry  allowed  by  mis- 
take pending  adverse  will  be  canceled. — 30  Id.  298.  A  relin- 
quishment  during  publication  and  before  adverse  claim  is  filed 
runs  to  the  government  though  in  terms  made  for  the  benefit 
of  another  claimant  and  the  ground  relinquished  can  not  there- 
after be  made  the  basis  of  an  adverse. — 27  Id.  369. 

The  Land  Office  has  the  right  to  cancel  mineral  entries  for 
non-compliance  with  Statute  or  rule,  although  no  adverse 
claim  has  been  filed. — Mineral  Farm  Co.  v.  Barrick,  33  Colo. 
410,  80  P.  1055. 

The  rejection  of  an  application  for  patent  or  the  cancella- 
tion of  his  receiver's  receipt  by  the  Land  Office  does  not  destroy 
the  applicant's  original  title  by  location. — Peoria  Co.  v. 
Turner,  20  Colo.  App.  474,  79  P.  915 ;  Rebecca  Co.  v.  Bryant, 
31  Colo.  119,  102  Am.  St.  Rep.  17,  22  M.  E.  538,  71  P.  1110. 

Repayment. 

By  A.  C.  March  26,  1908,  provision  is  made  for  the  repay- 
ment of  purchase  price  when  an  application  or  entry  is 
rejected,  and  applicant  has  not  been  guilty  of  any  fraud. — 
36  L.  D.  388. 

Register's  Proof  Completes  Application. 

Upon  receipt  of  the  final  entry  papers  (R — U,  Z  and  A  A) 
accompanied  by  the  purchase  money  (all  other  pn 


5T4  APPLICATION  FOR  PATENT. 

regular)  the  Register  makes  his  certificate  that  the  notice  "K" 
remained  posted  on  his  bulletin  during  the  period  that  its 
duplicates  were  being  posted  on  the  claim  and  published,  and 
makes  his  final  certificate  of  entry. 

V.     EEQISTEE  'S  CERTIFICATE  OF  POSTING  NOTICE  FOE  SIXTY  DAYS. 

[Attached  to  Bulletin  copy  of  K.~\ 

UNITED  STATES  LAND  OFFICE, 
At  Denver,  Colorado,  June  21,  .1916. 

I  hereby  certify  that  the  official  plat  of  the  Busy  Bee  and  Republican 
lodes  and  Republican  mill  site,  designated  by  the  Surveyor  General  as  lot 
No.  21000  A  and  B  was  filed  in  this  office  on  the  17th  day  of  April, 
A.  D.  1916,  and  that  a  notice,  of  which  the  attached  is  a  copy,  of  the 
intention  of  Carroll  Carter  to  apply  for  a  patent  for  the  mining  claim  or 
premises  embraced  by  said  plat,  and  described  in  the  field  notes  of  survey 
thereof  filed  in  said  application,  was  posted  conspicuously  in  this  office  on 
the  17th  day  of  April,  1916,  and  remained  so  posted  until  the  20th  day  of 
June,  1916,  being  the  full  period  of  sixty  consecutive  days  during  the 
period  of  publication  as  required  by  law;  and  that  said  plat  remained  in 
this  office  during  that  time  subject  to  examination  and  that  no  adverse 
claim  thereto  has  been  filed.  MAEY  WOLF  DARQIN, 

Register. 

It  is  important  that  this  bulletin  notice,  "K,"  should  have 
been  properly  posted.  The  Land  Office  holds  that  it  is  essen- 
tial that  the  three  notices,  to-wit:  By  newspaper,  by  posting 
and  by  the  bulletin  should  be  concurrent,  and  in  a  case  where 
the  bulletin  was  not  posted  till  the  third  day  of  advertise- 
ment they  allowed  an  adverse  on  the  63rd  day,  holding  that 
the  double  and  contemporaneous  publication  was  not  until  such 
day  complete.  The  bulletin  must  be  posted  60  days,  and  the 
newspaper  notice  does  not  begin  to  run  until  the  bulletin  is 
posted.— 5  L.  D.  510,  17  L.  D.  282.  If  any  one  of  the  three 
notices  is  insufficient  they  are  all  rendered  valueless. — 29  L.  D. 
467. 

W.   REGISTER'S  FINAL  CERTIFICATE  OF  ENTRY. 
Mineral  Entry  No.  09999. 
Lot  No.  21000  A  and  B. 

UNITED  STATES  LAND  OFFICE, 
At  Denver,  Colorado,  June  21,  1916. 

It  is  hereby  certified  that  in  pursuance  of  the  provisions  of  the  Revised 
Statutes  of  the  United  States,  Chapter  VI,  Title  32,  and  legislation  sup- 


APPLICATION  FOR  PATENT.  575 

plemental  thereto,  Carroll  Carter,  whose  postoffice  address  is  Denver, 
Colorado,  on  this  day  purchased  that  mining  claim  known  as  the  Biisy  Bee 
and  Republican  lodes  and  Republican  mill  site,  in  sections  24  and  25,  in 
township  No.  2  S.,  Range  No.  74  W.  of  the  sixth  principal  meridian, 
designated  as  lot  No.  21000  A  and  B,  said  lot  No.  21000  A  and  B  extend- 
ing 1,500  feet  in  length  along  said  Busy  Bee  and  Bepublican  vein  or  lode, 
expressly  excepting  and  excluding  from  said  purchase  all  that  portion  of 
the  ground  embraced  in  mining  claim  or  survey  designated  as  lot 
No.  19999,  Climax  lode;  and  also  all  that  portion  of  any  vein  or  lode, 
the  top  or  apex  of  which  lies  inside  of  said  excluded  ground;  said  lode 
mining  claims  as  entered,  embracing  8.058  acres  and  said  mill  site  five 
acres,  in  the  Wisconsin  Mining  District  in  the  County  of  Gilpin,  and  State 
of  Colorado,  as  shown  by  the  plat  and  field  notes  of  survey  thereof,  for 
which  the  said  party  first  above  named  this  day  made  payment  to  the 
receiver  in  full,  amounting  to  the  sum  of  seventy  dollars. 

Now,  therefore,  be  it  known  that  upon  presentation  of  this  certificate 
to  the  Commissioner  of  the  General  Land  Office,  together  with  the  plat  and 
field  notes  of  survey  of  said  claim  and  the  proofs  required  by  law,  a 
patent  shall  issue  thereupon  to  the  said  Carroll  Carter  if  all  be  found 
regular.  MAEY  WOLF  DARQIN, 

Register. 

Receiver's  Receipt. 

The  above  certificate,  generally  known  as  the  "Receiver's 
Receipt,"  was  under  former  practice  signed  by  the  Receiver, 
but  is  now  signed  by  the  Register,  who  issues  it  in  duplicate 
and  files  the  original  with  the  papers,  and  delivers  or  sends 
the  duplicate  to  the  claimant,  and  all  the  preliminary  proceed- 
ings are  now  complete.  This  receiver's  receipt  or  certificate 
of  entry  should  be  kept  by  the  claimant  until  notice  from 
Ihe  local  Land  Office  that  patent  has  arrived  at  such  local  Land 
Office,  as  its  surrender  is  required  before  the  patent  is  deliv- 
ered. If  mislaid,  proof  of  loss  must  be  made. 

X.     AFFIDAVIT  OF  LOST  "RECEIVER'S  RECEIPT." 

STATE  OF  COLORADO,         )  sg> 
City  and  County  of  Denver,  j 

In  the  Denver  Land  District,  Colorado. 

Before  me,  the  subscriber,  register  of  said  land  office,  personally 
appeared  John  Best,  who,  being  duly  sworn,  saith  that  he  is  the  (*) 
applicant  for  a  pateni  on  the  Brelau  lode  mining  claim  survey  lot 
No.  18000  in  Wisconsin  Mining  District,  County  of  Gilpin,  State  of 


576  APPLICATION  FOB  PATENT. 

Colorado,  and  the  same  person  who  as  such  applicant  made  entry  of  said 
survey  lot  in  the  said  land  office  on  or  about  the  first  day  of  June,  A.  D. 
1915.  That  on  the  date  of  said  entry  he  received  the  duplicate  register's 
final  certificate  of  entry  therefor.  That  said  duplicate  certificate  is  lost 
or  mislaid.  That  deponent  has  made  diligent  search  among  his  papers 
and  can  not  find  the  same,  and  can  not  therefore  surrender  the  same. 
That  he  never  assigned  or  purported  to  assign  said  duplicate  certificate 
and  still  remains  the  owner  and  in  possession  of  the  land  therein 
described  and  is  the  party  entitled  to  receive  the  patent  therefor.(*) 
Wherefore  affiant  asks  that  the  patent  to  said  survey  lot  be  delivered  to 
him  without  the  surrender  of  said  certificate  of  entry  upon  this  his 
affidavit  of  loss.  JOHN  BEST. 

Sworn  and  subscribed  to  before  me  this  eighth  day  of  June,  A.  D.  1916. 
My  commission  expires  March  4,  1918.  ALICE  HATCH, 

Notary  Public. 

If  the  title  has  been  transferred  insert  between  the  (*)   (*) 

Owner  by  purchase  of  the  Brelau  lode,  etc.  (description),  That  he 
purchased  the  same  since  the  same  was  entered  for  patent  by  deed  from 
the  party  who  made  the  entry.  That  he  never  received  the  duplicate 
register's  final  certificate  of  entry  from  his  vendor,  and  does  not  know 
where  the  same  can  be  found.  That  he  has  made  diligent  inquiry  of  the 
attorney  and  surveyor  employed  in  the  application  for  patent  to  said  lode, 
who  declare  that  they  never  had  the  same  in  their  possession,  and  that  the 
whereabouts  of  affiant's  vendor  are  unknown  to  affiant.  Wherefore,  etc. 

After  Entry. 

All  proceedings  after  entry  are  ministerial.  The  papers  in 
the  local  Land  Office,  except  the  copy  of  plat  F,  furnished  by 
the  Surveyor  General,  are  forwarded  to  the  General  Land 
Office  at  Washington  and  the  patent  issues  in  due  course 
usually  arriving  within  one  year,  the  department  being  behind 
in  its  office  work;  but  this  is  upon  the  supposition  that  all  the 
preliminary  steps  have  been  regular,  and  that  the  land  was  in 
fact  open  to  entry — if  material  errors  or  defects  are  discovered 
after  the  Receiver's  receipt  issues,  it  may  be,  and  often  is, 
recalled  and  canceled,  and  if  land  entered  as  agricultural  is 
shown  to  be  mineral  at  any  time  before  patent  issues,  the  same 
result  follows.— 7  L.  0.  23. 


APPLICATION  FOR  PATENT.  577 

Corrections  and  Additional  Proofs. 

The  entire  series  of  papers  are  reviewed  at  Washington  and 
if  irregularities,  such  as  errors  in  survey,  insufficient  proof  of 
improvements,  errors  in  affidavits,  etc.,  are  discovered,  the  local 
Land  Office  is  notified  from  the  General  Land  Office,  and 
(unless  the  mistake  is  a  fatal  one)  the  claimant  or  his  attorney 
is,  by  letter  from  the  local  Land  Office,  notified  to  remedy  the 
defect  by  further  affidavit  or  certificate,  as  the  case  may  be. 

Government  Price  $5  Per  Acre. 

The  application  papers  (p.  568)  are  accompanied  by  the 
money  to  be  paid  on  the  land,  being  $5  for  each  acre  or  frac- 
tional part  of  an  acre  of  the  surface  ground.  The  extreme 
limit  of  claim  being  1,500  feet  long  by  600  feet  broad,  such 
claim  contains  20  and  66-100  acres;  the  fractional  acre  being 
paid  for  as  one  acre,  makes  the  claim  equivalent  to  21  acres. 
The  amount  paid  will  therefore  vary  between  $5  and  $105  for 
a  single  lode  location  with  no  mill  site.  The  price  of  placer 
ground  is  $2.50,  and  of  mill  site  $5  per  acre,  or  fraction  of  an 


Acreage  of  Lode  Claims. 

In  computing  this  acreage  all  interfering  surveys  which  have 
been  deducted,  are  excluded.  The  payment  is  based  on  the 
amount  of  claimed  surface  ground  covered  by  the  survey  and 
not  excluded  in  favor  of  prior  applications. 

Claim   1500  z  600   feet  contains   20.66  acres. 


1500  x  300 
1500  x  150 
3000  x  50 
1400  x  50 
1600  x  50 


10.33 
5.16 
3.44 
1.60 
1.83 


Affidavits— Where  Made. 

All  affidavits  made  in  support  of  the  application  must  be 
made  within  the  land  district— R.  S.  Sec.  2335,  34  L.  D.  314, 
35  Id.  455.  42  L.  D.  526.  A  possible  exception  to  this  is  the 


578  APPLICATION  FOB  PATENT. 

publisher's  affidavit  (S)  where  the  paper  "nearest  the  claim" 
happens  to  be  a  newspaper  in  another  land  district. — 38  L.  D. 
131.  Another  exception  is  the  affidavit  of  citizenship. — See 
page  565. 

That  the  affidavit  of  posting  was  made  outside  the  land  dis- 
trict will  not  render  the  entry  void. — El  Paso  Co.  v.  McKnight, 
233  U.  S.  250,  L.  R.  A.  1915A,  1113,  34  Sup.  Ct.  Rep.  498, 
58  L.  Ed.  943. 

Before  What  Officer. 

They  may  be  made  before  a  disinterested  notary  public  or 
any  officer  authorized  to  administer  oaths.  Among  such  officers 
are  the  Register  and  Receiver  of  the  proper  district.  Where 
allowed  outside  the  district  they  should  be  taken  before 
a  notary  or  the  Clerk  of  a  Court  of  Record.  In  all  cases  the 
official  seal  should  be  attached. — Rule  69. 

A  notary  who  has  been  retained  as  counsel  for  an  interested 
party  can  not  act.— 42  L.  D.  526. 

It  had  been  ruled  that  any  officer,  as  for  instance  the  Clerk 
of  the  U.  S.  Court,  whose  jurisdiction  extends  over  the  terri- 
tory of  the  land  district,  may  administer  the  oath  anywhere 
within  his  jurisdiction. — 3  L.  0.  195.  But  it  was  later  held 
that  such  officer  must  be  within  the  land  district. — 34  L.  D.  314. 

Where  the  Application  Is  Joint,  Any  One  Co-Owner  May 

make  all  the  affidavits  required,  on  behalf  of  his  co-owners  as 
well  as  on  his  own  behalf,  except  the  affidavit  of  citizenship. — 
See  page  564. 

When  a  claim  is  owned  in  common,  it  is  sometimes  convenient 
to  have  a  quit-claim  executed  by  the  others  to  one  of  their 
number,  placing  the  title  for  the  time  being,  in  his  name,  the 
grantors  securing  themselves  by  title  bond  or  otherwise. 

Application  by  Agent. 

Provided,  That  where  the  claimant  for  a  patent  is  not  a  resident  of 
or  within  the  land  district  wherein  the  vein,  lode,  ledge,  or  deposit  sought 


APPLICATION  FOE  PATENT.  579 

to  be  patented  is  located,  the  application  for  patent  and  the  affidavits 
required  to  be  made  in  this  section  by  the  claimant  for  such  patent  may 
be  made  by  his,  her,  or  its  authorized  agent,  where  said  agent  is  conver- 
sant with  the  facts  sought  to  be  established  by  said  affidavits:  *  *  * 
— A.  C.  Jan.  22,  1880.  Amendment  to  Sec.  2325. 

It  does  not  seem  that  under  the  above  act  a  resident  owner 
can  apply  at  all  by  agent — unless  at  least  temporarily  absent. 
—8  L.  D.  223,  35  L.  D.  434.  And  the  fact  of  absence  should 
be  recited  in  the  power  of  attorney.  In  other  words,  he  can 
not  delegate  the  power  while  he  is  present,  by  mere  caprice 
or  desire  to  avoid  personal  attention  to  the  matter. 

Verification  of  application  by  agent  where  claimant  is  within 
the  district  makes  the  entry  invalid.— 41  L.  D.  614,  42  L.  D. 
481. 

Where  an  application  is  by  agency  there  must  be  a  written 
power  of  attorney,  the  original  of  which  is  filed  in  the  Land 

Office. 

Y.     FORM  OP  POWER  OF  ATTORNEY. 

KNOW  ALL  MEN  BY  THESE  PRESENTS,  That  I,  John  Glenn,  of  Baltimore, 
State  of  Maryland,  a  citizen  of  the  United  States,  do  hereby  constitute 
and  appoint  J.  W.  B.  Smith,  of  Idaho  Springs,  County  of  Clear  Creek, 
State  of  Colorado,  my  attorney-in-faet,  for  me  and  in  my  name,  to  make 
application  for  patent  of  the  United  States,  in  the  proper  land  office, 
upon  the  Dragon  lode  mining  claim,  1,500  feet  in  length  by  150  feet  in 
width,  situate  on  Republican  Mountain  in  Griffith  Mining  District,  County 
of  Clear  Creelc,  State  of  Colorado,  and  to  make  or  cause  to  be  made,  any 
and  all  surveys,  relocations,  affidavits,  and  all  necessary  papers  which  may 
be  required  in  the  prosecution  of  such  application,  or  to  perfect  or  protect 
the  title  thereto,  and  to  do  all  acts  and  things  in  and  about  the  premises 
which  I  myself,  if  present,  could  do,  until  patent  is  finally  delivered.  Also 
in  case  of  adverse  claim,  I  authorize  him  to  employ  counsel  and  take  all 
measures  necessary  to  defend  against  said  adverse  claim  or  suit  in  support 
thereof,  either  in  the  land  office  or  in  judicial  proceedings,  and  in  such 
judicial  proceedings,  to  execute  any  bonds  or  other  papers,  and  verify  all 
proceedings,  to  and  including  appeal  or  writ  of  error. 

Witness  my  hand  and  seal  this  third  day  of  February,  A.  D.  1916. 

JOHN  GLENN.    (SEAL) 
Acknowledge  according  to  form  on  p.  333. 

The  mineral  surveyor  can  not  accept  such  power  nor  act 
directly  or  indirectly  as  agent. — Rule  93. 


580  APPLICATION  FOR  PATENT. 

In  Each  Affidavit  Signed  by  Agent  Should  Be  Inserted,  by 
way  of  precaution,  the  following  clause: 

Affiant  further  saith  that  the  said  claimant  is  not  a  resident  in  the 
land  district  in  which  said  claim  is  situate,  but  resides  at  Tallahassee, 
State  of  Florida,  and  that  affiant  is  the  duly  authorized  agent  of  said 
claimant,  and  is  conversant  with  the  facts  sought  to  be  established  by 
eaid  affidavit. 

Where  a  Corporation  Applies  All  Papers  are  Signed  by  the 

president,  or  other  officer  designated  as  stated  in  the  next  para- 
graph; but  more  usually  (and  advisably),  it  executes  the 
form  Y  to  some  resident  person  or  agent. — See  page  579. 

"Where  it  does  not  adopt  the  latter  plan  the  Land  Office  prac- 
tice requires  proof  that  the  officer  purporting  to  act  for  the 
company  was  authorized  to  make  the  application.  Such  proof 
may  consist  of  a  copy  of  the  resolution  of  the  board  of  direc- 
tors instructing  some  designated  officer  to  apply  for  patent  to 
the  claim  or  claims  mentioned,  certified  by  the  secretary  under 
the  corporate  seal. 

Mill  Site  Application. 

Where  a  mill  site  is  applied  for  separately  it  must  be  upon 
land  occupied  by  mill  or  reduction  works  (page  298).  In  such 
case  the  forms  herein  given  are  sufficient,  changing  the  word 
"lode"  to  "mill  site,"  and  adding  the  two  forms  next  follow- 
ing. The  price  per  acre  is  also  the  same  (page  294).  The 
applications  for  mill  sites  alone  are  rare,  they  being  usually 
applied  for  in  connection  with  a  lode. 

But  the  Land  Office  has  ruled  that  the  owner  of  a  lode 
already  gone  to  patent,  who  then  held  or  afterwards  secured 
title  to  a  mill  site  which  he  uses  as  appurtenant  to  his  mine, 
may  apply  for  a  patent  to  the  mill  site  later  by  independent 
application,  upon  showing  the  use  of  the  mill  site  in  connection 
with  the  lode,  the  same  as  if  he  had  originally  joined  both  in 
one  application. — 22  L,  D.  496. 


APPLICATION  FOB  PATENT.  681 

Z.     NON-MINERAL  AFFIDAVIT. 

STATE  OF  COLORADO,     ) gg 
County  of  Gilpin.        j 

Clarence  Jarbeau  and  Benj.  C.  Catren,  Jr.,  each  of  lawful  age  and 
residents  of  Georgetown,  in  said  County,  being  first  duly  sworn,  each  for 
himself,  and  not  one  for  the  other,  saith:  That  he  is  a  citizen  of  the 
United  States;  that  he  is  well  acquainted  with  the  Republican  mill  site 
claim  of  Carroll  Carter,  situate  in  Wisconsin  Mining  District  in  Gilpin 
County,  Colorado,  upon  which  said  Carroll  Carter  has  applied  for  patent 
of  the  United  States,  and  knows  the  character  of  said  described  land, 
having  frequently  been  actually  upon  the  same ;  that  his  knowledge  of  the 
land  is  such  as  to  enable  him  to  testify  understandingly  with  regard 
thereto;  that  there  is  not  to  his  knowledge  within  the  limits  thereof,  any 
vein  or  lode  of  quartz  or  other  rock  in  place,  bearing  gold,  silver,  cinnabar, 
lead,  tin  or  copper,  or  any  placer,  cement,  or  other  valuable  mineral 
deposits,  or  any  deposit  of  coal;  that  the  land  contains  no  salt  spring,  or 
deposits  of  salt  in  any  form  sufficient  to  render  it  chiefly  valuable  there- 
for; that  no  portion  of  said  land  is  claimed  for  mining  purposes  under 
the  local  customs  or  rules  of  miners  or  otherwise;  that  uo  portion  of  said 
land  is  worked  for  minerals  during  any  part  of  the  year  by  any  person 
or  persons;  that  said  land  is  essentially  non-mineral  land,  and  that  he  has 
no  interest  whatever  in  said  claim,  or  in  said  application  for  patent. 

CLARENCE  JARBEAU, 
BENJ.  C.  CATREN,  JR. 

Verification  as  in  form  BB. 

The  claimant  is  not  required  under  the  rules  as  amended  to 
file  his  own  affidavit  to  the  same  effect. — Rule  65. 

Where  a  mill  site  is  applied  for  either  separately  or  in  con- 
nection with  a  lode  a  second  affidavit  substantially  according  to 
the  following  form  is  required.— 13  L.  D.  175,  32  L.  D.  128, 
34  L.  D.  325. 

AA.   PROOF  OF  MILL  SITE  USED  FOR  MINING  (OR  MILLING)  PURPOSES. 

STATE  OF  COLORADO,     1 
County  of  Gilpin.        / 

Before  me,  the  subscriber,  a  notary  public  in  and  for  said  County, 
personally  appeared  Carroll  Carter  (claimant),  and  Harry  Evans  and 
James  W.  Eoss  (witnesses),  who  being  duly  sworn  each  for  himself  and 
not  one  for  the  other,  saith  that  he  is  a  citizen  of  the  United  States  and 
said  witnesses  reside  in  said  County.  That  he  is  familiar  with  the 
Republican  mill  site,  survey  lot  No.  21000  B.  for  which  the  said  Carroll 
Carter  has  applied  for  patent  in  the  United  States  land  office  at  Denver, 


582  APPLICATION  FOE  PATENT. 

Colorado.  That  the  ground  embraced  in  said  survey  is  used  or  occupied 
by  sard  claimant  for  mining  and  milling  purposes,  to  wit:  As  a  dump  for 
the  Busy  Bee  and  Republican  lodes,  and  contains  a  fifty-stamp  mill  and  an 
ore  house  used  in  the  working  of  said  lodes;  also  a  boarding  house,  used 
by  miners  engaged  in  working  said  lodes  (etc.,  as  the  case  may  be). 

And  the  said  Harry  Evans  and  James  W.  Ross,  severally  say  that  they 
have  no  interest  whatever  in  said  mill  site  or  in  the  application  for  patent 
therefor.  CARROLL  CARTER, 

HARRY  EVANS, 

Verification  as  in  form  BB.  JAMES  W.  Ross. 

As  to  contiguity  of  mill  site  see  page  297. 

The  improvements  must  be  in  the  nature  of  mills,  flumes, 
ditches,  or  other  things  incidental  to  milling  or  mining.  Build- 
ings and  roads  not  used  for  such  purposes  can  not  be  consid- 
ered; otherwise  if  they  are  so  used. — See  page  299. 

It  is  generally  advisable  to  apply  for  a  mill  site  in  connec- 
tion with  a  lode  claim;  and  in  applying  for  a  lode  patent  a 
mill  site  can  be  included  and  surface  for  building  purposes 
readily  acquired,  at  a  cost  of  $50  less  than  if  separate  appli- 
cations are  made. — See  pages  294,  299. 

The  lode  is  always  distinguished  as  survey  lot  "A" — the 
mill  site  by  the  same  number  with  the  addition  of  "B."  The 
mill  site  may  be  in  another  mining  district  or  in  a  section 
different  from  that  containing  the  lode. 

In  such  application  there  must  be  a  plat,  and  notice  K 
posted  on  both  lode  and  mill  site ;  if  not  posted  on  the  latter, 
republication  will  be  required.— 25  L.  D.  165,  27  Id.  373, 
Rule  63. 

The  department  has  ruled  that  a  lode  intersected  by  a  mill 
site  or  placer  may  be  patented  only  to  the  edge  of  the  inter- 
secting claim.— 13  L.  D.  146,  16  Id.  186,  26  Id.  675,  28  Id. 
120 ;  and  that  such  a  location  is  not  valid  as  to  ground  on  the 
other  side  of  the  mill  site.— 26  L.  D.  675.  But  by  a  later 
ruling  both  parts  may  be  patented  if  the  vein  has  been  dis- 
covered on  both  sides.— 31  L.  D.  359. 

Two  mill  sites  not  containing  together  more  than  five  acres 
may  be  included  in  one  application. — 2  L.  D.  755.  It  is  inti- 


APPLICATION  FOE  PATENT.  583 

mated  that  on  sufficient  showing  more  than  one  mill  site 
may  be  patented  with  a  group  of  .claims. — 34  L.  D.  327.  See 
page  299. 

The  Land  Office  distinguishes  between  a  mere  water  right 
and  a  mill  site. — 5  L.  D.  190.  The  use  of  a  spring  is  not  a  mill 
site  occupation. — Id. 

The  rejection  of  an  application  for  a  lode  claim  carries 
with  it  an  included  application  for  a  mill  site. — 43  L.  D.  548. 

Lodes  and  Placers  Distinguished. 

Only  metalliferous  deposits  in  place  are  considered  lodes 
under  the  mining  act. — 9  L.  0.  165.  Everything  else  of  a 
mineral  character,  t.  e.,  lands  containing  a  mineral  substance 
rendering  them  of  more  value  for  the  extraction  thereof  than 
for  surface  purposes,  is  treated  as  placer  ground.  The  rulings 
on  this  point  are  cited  on  pages  260,  261.  In  addition  to  the 
cases  there  given  it  has  been  ruled  that  limestone  for  lime  kiln 
purposes  may  be  located  as  placer  ground. — 9  L.  0.  5 ;  and  it 
can  not  be  located  as  a  lode  claim.— 23  L.  D.  353;  Id.  395. 
Mica  may  be  entered  as  a  mining  (presumably  a  placer)  claim. 
— 2  L.  0.  131.  A  deposit  of  brick-clay  does  not  make  placer 
ground. — 6  L.  D.  761,  31  L.  D.  108.  Sandstone  formation  bear- 
ing gold,  should  be  located  as  a  lode  claim. — 38  L.  D.  294. 

Sedimentary  sandstone  carrying  gold  is  rock  in  place  upon 
which  a  lode  claim  can  be  made. — 38  L.  D.  294. 

Iron  may  be  lode  or  placer  according  to  the  nature  or  form 
of  the  deposit,  following  the  same  distinction  referred  to  in  the 
asphaltum  case  cited  on  page  259.— Copp.  Min.  Dec.  214,  Dept. 
Letter  MS.  Aug.  31,  1909. 

Placer  claims  require  a  material  subdivision  into : 

First — Claims  located  on  unsurveyed  lands. 

Second — Claims  located  by  adopting  the  governmental  sub- 
divisions of  lands  already  surveyed. 

Placer  Patent  on  Unsurveyed  Lands. 

In  applying  for  patent  on  a  placer  claim  located  upon 
unsurveyed  lands  the  foregoing  forms,  with  obvious  altera- 
tions, will  suffice. 


584  APPLICATION  FOR  PATENT. 

In  addition  to  such  forms  used  for  lode  applications  there 
must  be  filed  in  the  land  office  with  the  first  set  of  papers, 
proof  that  the  placer  contains  no  lodes  (BB)  excepting,  of 
course,  such  as  are  especially  applied  for  in  the  application 
itself,  or  excluded  therefrom  as  the  property  of  others,  and  a 
certified  copy  of  the  Descriptive  Report  (CC)  based  on  para- 
graph 60,  Land  Office  Regulations. 

BB.    PROOF  THAT  NO  KNOWN  VEINS  EXIST  IN  PLACER  CLAIM. 

STATE  OF  COLORADO, 
County  of  Gilpin. 

John  C.  Jenkins  and  Thomas  H.  Potter,  each  of  lawful  age,  and  resi- 
dent in  Central  City,  in  the  said  County,  being  first  duly  sworn,  each  for 
himself,  and  not  one  for  the  other,  saith,  that  he  is  a  citizen  of  the 
United  States;  that  he  is  well  acquainted  with  the  Keystone  Placer  Min- 
ing Claim,  situate  in  Gregory  Mining  District,  County  of  Gilpin,  State  of 
Colorado,  claimed  by  John  Wardell,  applicant  for  United  States  patent 
therefor;  that  for  many  years  he  has  resided  near  to,  and  is  well 
acquainted  with  the  character  of  said  land,  having  frequently  passed  over 
the  same;  that  his  knowledge  of  said  land  is  such  as  to  enable  him  to 
testify  understandingly  in  regard  thereto,  and  that  there  is  not,  to  his 
knowledge,  within  the  limits  thereof,  any  known  vein  or  lode  of  quartz  or 
other  rock  in  place,  bearing  gold,  silver,  cinnabar,  lead,  tin  or  copper, 
upon  said  claim  or  any  part  thereof,  and  further,  that  he  has  no  interest 
whatever  in  the  said  placer  claim.  JOHN  C.  JENKINS. 

THOMAS  H.  POTTER. 

Subscribed  and  sworn  to  before  me,  this  second  day  of  May,  A.  D. 
1916,  and  I  hereby  certify  that  the  foregoing  affidavit  was  read  to  the 
above  named  John  C.  Jenkins  and  Thomas  E.  Potter,  previous  to  their 
names  being  subscribed  thereto,  and  that  deponents  are  reputable  persons 
to  whom  full  faith  and  credit  should  be  given. 

My  commission  expires  March  3,  1920.  JAMES  M.  SERIGHT, 

(SEAL)  Notary  Public. 

This  affidavit  must  be  made  by  two  or  more  witnesses 
(Rule  26)  and  filed  in  the  land  office,  together  with  transcript 
FF,  with  the  first  set  of  papers. 

The  descriptive  report  the  surveyor  makes  out  without  spe- 
cial instructions  on  receipt  of  "B,"  the  order  for  survey,  and 
forwards  it,  with  the  field  notes  of  the  survey,  to  the  Surveyor 
General. 


APPLICATION  FOE  PATENT.  685 

CC.     THE   DESCRIPTIVE   REPORT. 

Survey  No.  *20500. 

Under  paragraph   60,   General  Mining  Circular,   approved   August   8, 

1915,  upon  the  Placer  Mining  Claim,  known  as  the  Hyena  placer,  claimed 
by   S.   G.   Shaw,  situate  in  Spanish  Bar  Mining  District,  Clear  Creek 
County,  Colorado,  embracing  a  total  area  of  9.468  acres  in  unsubdiiided 
township  3  S.,  range  73  W.  of  the  6th  P.  M.   Examination  made  March  10, 

1916,  by  Frank  A.  Maxwell,  TJ.  S.  Mineral  Surveyor. 

a.  The  soil  is  a  black  loam,  varying  from  3  to  6  inches  in  depth,  under- 
laid with  auriferous  gravel.     The  timber  consists  of  a  scattering  growth 
of  spruce  and  yellow  pine  trees,  and  along  the  banks  of  the  creek  there  is 
a  dense  growth  of  small  willows. 

b.  Beaver  Creek,  a  small  stream  about  10  feet  wide,  flows  in  a  north- 
easterly direction  through  the  claim.     Approximate  average  fall,  2  feet 
per  hundred. 

c.  The  workings  upon  the  claim  consist  of  an  open  cut  90  feet  long, 
20  feet  wide  and  10  feet  deep  in  earth  and  gravel  to  bed  rock.     Course 
N.  50°  E.    The  center  of  the  westerly  end  bears  N.  5°  W.  500  feet  from 
corner  No.  5.     A  ditch  475  feet  long, '2  feet  wide  and  18  inches  deep, 
average  course  N.  53°  15'  E.,  the  head  of  which  bears  N.  71°  .E.  50  feet* 
from  corner  No.  3.    A  shaft  3  by  6  feet,  10  feet  deep  in  earth  and 
gravel,  bears  from  corner  No.  4,  N.  2°  W.  200  feet.    A  shaft,  3  by  7  feet, 
15  feet  deep  in  earth  and  gravel,  bears  from  corner  No.  3,  N.  19°  W.  90 
feet.     A  timbered  drift,  3  by  6  feet  in  the  clear,  18  feet  long,  course 
N.  28°  E.,  the  mouth  of  which  bears  from  corner  No.  1,  S.  21°  W.  170 
feet. 

d.  This  claim  is  located  about  three  miles  in  a  southeasterly  direction 
from  the  town  of  Maysville  and  one  mile  west  of  Clear  Creek  Junction. 

e.  The  northwest  boundary  line,  1-2,  is  common  with  the  southeast  side 
line  of  the  Wetzel  lode,  unsurveyed.    The  northeast  boundary  line,  6-1,  is 
common  with  the  southwest  side  line  of  the  Silvester  lode  claim,  unsur- 
veyed, and  a  portion  of  the  southeast  boundary  line  5-6,  is  common  with 
the  northwest  side  line  of  the  Cement  Creek  lode  unsurveyed. 

The  above  specified  lode  claims  are  in  close  proximity  to  and  form  part 
of  well  known  systems  of  lode  deposits  surrounding  this  placer  on  the 
north,  west  and  east. 

f .  This  claim  is  well  adapted  for  placer  mining  purposes.    Water  has 
been  brought  from  Beaver  Creek  to  work  the  lower  portion  of  the  claim, 
and  it  can  be  brought  from  a  point  in  the  same  creek  about  one  quarter 
mile  above  to  work  the  entire  claim. 


*If  on  surveyed  lands  and  conforming  to  legal  subdivisions  no  survey 
number  is  given  and  no  survey  is  required. 


586  APPLICATION  FOE  PATENT. 

g.  The  works  or  expenditures  upon  this  claim,  placed  thereon  by  the 
claimant  and  his  grantors,  consist  of  an  open  cut  90  feet  long,  20  feet 
wide  and  10  feet  deep,  in  earth  and  gravel  to  bed  rock.  Course,  N.  50°  E. 
The  center  of  the  westerly  end  bears  N.  5°  W.  500  feet  from  corner  No.  5. 
A  ditch  475  feet  long,  2  feet  wide  and  18  inches  deep,  the  head  of  which 
bears  N.  71*  E.  50  feet  from  corner  No.  3;  average  course,  N.  53°  15'  E. 
to  the  open  cut  described  above.  A  shaft  3  by  6  feet,  10  feet  deep  in 
earth  and  gravel,  bears  from  corner  No.  4,  N".  2°  W.  200  feet.  A  shaft 
3  by  7  feet,  15  feet  deep  in  earth  and  gravel,  bears  from  corner  No.  3, 
N.  19°  W.  90  feet. 

h.  There  are  no  salt-licks,  salt-springs,  mines  other  than  the  claimant  'a 
workings,  nor  mill  sites  upon  this  claim. 

i.  This  placer  is  surrounded  by  unsurveyed  lode  locations  on  the  north, 
west  and  east  boundaries  as  stated  herein.  Boundary  lines  2-3,  3-4  and 
4-5  have  been  located  and  surveyed  in  accordance  with  the  configuration 
of  the  land,  which  as  near  as  can  be  determined,  defines  the  placer  bed  or 
deposit.  FRANK  A.  MAXWELL, 

U.  S.  Mineral  Surveyor. 

I,  Frank  A.  'Maxwell,  United  States  Mineral  Surveyor,  do  solemnly 
0wear  that  in  pursuance  of  an  order  received  from  the  United  States 
Surveyor  General  for  Colorado,  dated  November  2,  1916,  I  have  made, 
under  the  provisions  of  paragraph  60,  General  Mining  Circular,  approved 
August  6,  1915,  a  personal  and  thorough  examination  upon  the  premises 
of  the  placer  mining  claim  of  8.  G.  Shaw,  known  as  the  Hyena  placer, 
situate  in  Spanish  Bar  Mining  District,  Clear  Creek  County,  Colorado, 
embracing  a  total  area  of  9.468  acres  in  unsubdimded  Township  No.  3 
S.,  Eange  No.  73  W.  6th  P.  M.,  and  that  my  report  of  such  examination, 
hereto  attached,  is  specific  and  in  detail,  and  is  a  full  and  true  statement 
of  the  facts  upon  all  the  points  specified  in  the  paragraph  referred  to. 

FRANK  A.  MAXWELL. 

Subscribed  and  sworn  to  by  the  said  FranTc  A.  Maxwell,  U.  S.  Mineral 
Surveyor,  before  me,  a  notary  public,  this  10th  day  of  November,  1916. 
My  commission  expires  March  4,  1918.  ALICE  HATCH, 

(SEAL)  Notary  Public. 

This  descriptive  report  must  be  corroborated  by  the  affidavit 
of  two  disinterested  witnesses  as  follows — Rule  60 : 

DD.      CORROBORATIVE  REPORT. 

STATE  OF  COLORADO,       )  gs 
County  of  Clear  Creek.     J 

William  Cooper  and  James  A.  Noone,  being  first  duly  sworn,  each 
severally  deposes  and  says  that  he  is  personally  and  well  acquainted  with 
the  placer  mining  claim  of  S.  G.  Shaw,  known  as  the  Hyena  placer,  situ- 


APPLICATION  FOR  PATENT.  587 

ate  in  Spanish  Bar  mining  district,  Clear  Creek  County,  Colorado,  embrac- 
ing a  total  area  of  9.468  acres,  in  unsubdivided  Township  No.  3  S.,  Range 
No.  73  W.,  and  also  with  the  character  of  all  the  land  included  in  said 
claim,  and  has  been  so  acquainted  for  two  years  last  past ;  that  his  knowl- 
edge of  said  claim  and  land  is  derived  from  personal  observation,  and  is 
such  as  to  enable  him  to  testify  understandingly  with _  regard  thereto; 
that  he  has  carefully  read  the  foregoing  report  of  Frank  A.  Maxwell, 
U.  S.  Mineral  Surveyor,  and  that  to  his  own  personal  knowledge  said 
report  is  in  all  respects  true  and  accurate. 

WILLIAM  COOPER. 

JAMES  A.  NOONE. 

Subscribed  and  sworn  to  by  the  above  named  persons  before  me,  this 
10th  day  of  November,  1916. 

My  commission  expires  May  16,  1920. 

[SEAL.]  JOHN  TOMAY, 

Notary  Public. 

The  descriptive  report  CC,  with  its  corroborative  report 
DD  indorsed  or  attached,  the  Surveyor  General  approves  in 
the  following  form : 

EE.    APPROVAL  OP  DESCRIPTIVE  REPORT. 

DEPARTMENT  OF  THE  INTERIOR, 
Office  of  U.  S.  Surveyor  General, 

Denver,  Colorado,  November  25,  1916. 

I,  John  B.  McGauran,  United  States  Surveyor  General  for  Colorado, 
do  hereby  certify  that  the  foregoing  and  annexed  report  of  the  examina- 
tion of  the  placer  mining  claim  of  S.  G.  Shaiv,  known  as  the  Hyena 
placer,  made  by  United  States  Mineral  Surveyor  Frank  A.  Maxwell,  under 
paragraph  60,  General  Mining  Circular,  approved  August  6,  1915;  and 
under  my  instructions  dated  November  2,  1916,  has  been  carefully  exam- 
ined and  conforms  in  all  respects  to  the  requirements  of  said  circular;  and 
said  report  is  hereby  approved. 

JOHN  B.  MCGAURAN, 

U.  S.  Surveyor  General  for  Colorado. 

After  indorsement  of  such  approval,  the  Surveyor  General 
certifies  a 

FF.      TRANSCRIPT   OF  DESCRIPTIVE   REPORT. 

Including  its  exhibits  or  indorsements  DD  and  EE,  as 
follows : 


588  APPLICATION  FOR  PATENT. 

GO.    CERTIFICATE  TO  DESCRIPTIVE  REPORT. 

DEPARTMENT  OF  THK  INTERIOR, 

Office  of  U.  S.  Surveyor  General, 

Denver,  Colorado,  November  25,  1016. 

I,  John  "B.  McGauran,  U.  S.  Surveyor  General  for  Colorado,  do  hereby 
certify  that  the  annexed  is  a  full,  true  and  correct  copy  of  the  report 
made  under  paragraph  60,  General  Mining  Circular,  approved  August  6, 
1915,  and  of  the  affidavits  and  approval  attached  to  said  report  on  the 
placer  mining  claim  of  S.  G.  Shaw,  known  as  the  Hyena  placer,  situate 
in. Spanish  Bar  mining  district,  Clear  Creek  County,  Colorado,  in  the 
Denver  land  district,  as  the  same  appear  on  file  in  this  office. 

JOHN  B.  MCGAURAN, 
U.  S.  Surveyor  General  for  Colorado. 

This  transcript  so  certified,  together  with  the  field  notes  and 
plats,  is  sent  to  the  claimant,  who  delivers  all  papers  to  his 
attorney  to  enable  him  to  make  out  the  notices  "K"  which 
he  causes  to  be  posted  and  published,  and  proceeds  in  all 
further  respects  the  same  as  on  application  for  lode  patent. 

Application  for  Patent  on  Surveyed  Lands. 

The  language  of  the  Congressional  Act  as  to  this  class  of 
claims  is  obscure,  but  it  seems  that  where  a  placer  deposit  is 
found  on  surveyed  lands,  discovery,  location  and  record  must 
be  made  exactly  as  in  the  case  of  discovery  on  unsurveyed 
public  domain,  except  that  instead  of  a  description  by  metes 
and  bounds,  the  location  certificate  should  describe  it  as  the 
northeast  quarter  of  section  8,  township  10,  etc.,  using  one 
name  for  each  twenty  acres  and  not  claiming  more  than  160 
acres  by  one  record.  It  is  advisable  to  give  it  a  name  as  in 
other  cases. 

Although  already  surveyed  it  should  be  staked,  marking  the 
stakes  with  the  name  of  the  claim  and  number  of  the  corner 
to  indicate  the  appropriation,  replacing  the  government  stakes 
if  not  then  found. — See  page  269. 

When  the  placer  application  is  for  an  exact  quarter  section, 
or  a  series  of  forties  or  tens  recorded  and  adopted  as  the  claim, 
no  order  for  survey,  plat  or  field  notes  are  required,  their  office 
having  been  fulfilled  by  the  prior  government  survey  already 


APPLICATION  FOR  PATENT.  589 

made  and  platted  with  the  Surveyor  General,  and  the  applica- 
tion may  be  made  in  the  land  office  without  any  proceedings 
whatever  in  the  Surveyor  General's  office. 

The  proof  of  $500  expenditure  in  such  case  should  be  made 
by  the  affidavit  of  two  or  more  disinterested  witnesses  ac- 
quainted with  the  claim. — 25  L.  D.  550 ;  Rule  25. 

The  descriptive  report  in  such  cases  is  not  obligatory. — 7 
L.  D.  390.  And  the  Commissioner  of  the  General  Land  Office, 
by  letter  of  October  20,  1900,  to  the  Surveyor  General  of  Colo- 
rado, instructed  that  office  that,  where  legal  subdivisions  are 
taken,  a  descriptive  report,  though  approved  by  the  Surveyor 
General,  would  not  be  official  unless  specially  required  by  tlxe 
department. 

The  circumstances  in  which  such  report  would  be  required 
by  the  department  are  uncertain,  but  when  required,  would 
doubtless  be  ordered  through  the  office  of  the  Surveyor 
General. 

In  lieu  of  the  descriptive  report  certain  additional  data  are 
required  to  be  given  in  the  application  for  patent  "M."— 
Rule  60. 

If  any  ground  is  excepted  so  that  the  claim  is  not  an  exact 
conformation  to  the  subdivisions  an  official  survey  is  required. 
— 6  L.  D.  580;  in  which  case  the  report  would  doubtless  be 
necessary;  but  no  official  survey  is  required  if  the  excluded 
ground  be  patented. — 31  L.  D.  64. 

No  survey  is  required  where  the  entry  is  part  of  a  lot  and 
describes  the  claim  so  that  it  may  be  readily  identified. — 42 
L.  D.  413. 

For  regulations  governing  placer  applications  see  Rules 
19-30  and  58-60. 

Where  a  Placer  Contains  Known  Lodes  Owned  by  the  Appli- 
cant, they  are  applied  for  as  parcels  of  the  placer  application 
and  are  especia^y  designated  on  the  survey  by  their  names  but 
without  separate  numbers  and  platted  each  with  a  width  of 
50  feet,  or  with  the  full  width,  if  so  located,  and  the  claimant 


590  APPLICATION  FOR  PATENT. 

elects  to  survey  them  for  such  full  width,  and  to  pay  the  lode 
price  for  such  full  width.  If  such  lodes  have  never  been 
previously  located  a  formal  discovery  and  record  of  the  same 
should  be  made  and  abstract  filed  the  same  as  for  placer. 

In  requesting  order  for  survey  name  the  lodes,  i.  e.,  insert  in 
form  "A"  The  Special  Delivery  Placer,  including  three  known 
lodes,  to  wit:  The  Silence,  The  Security  and  The  Celerity,  etc., 
and  send  copies  of  location  certificates  of  each  lode. — See 
page  540. 

Where  the  lode  and  placer  do  not  touch  they  can  not  go  in 
the  same  application. — 5  L.  0.  162. 

Patenting  Known  Lode  Within  Placer  Patent. 

Although  known  lodes  are  distinctly  excepted  from  the 
placer  patent  and  the  department  originally  recognized  this 
exception  (7  L.  O.  .100)  it  was  later  ruled  in  the  case  of  the 
Pike's  Peak  Lode,  10  L.  D.  200,  14  Id.  47,  that  the  land  office 
would  not  issue  patent  to  the  owner  of  such  excepted  known 
lode  unless  the  placer  patent  had  been  either  judicially  set 
aside  to  the  extent  of  the  ground  covered  by  the  surface  of  the 
known  lode  or  the  placer  owner  had  quitclaimed  such  surface 
back  to  the  United  States  so  as  to  revest  the  title  in  the  govern- 
ment. 

This  untenable  position  of  the  department  was  persisted  in 
until  the  South  Star  Lode  case,  20  L.  D.  204,  was  decided, 
where  the  whole  subject  was  reviewed  and  the  ruling  made 
that  patent  may  issue  to  the  lode  owner  "when  it  had  been 
ascertained  by  inquiry  instituted  by  the  department,"  that  a 
lode  was  known  to  exist  at  the  date  of  the  application  for  the 
placer  patent,  as  well  as  in  cases  where  a  judicial  decree  to 
the  same  effect  had  been  rendered.  The  result  of  this  ruling  is 
that  the  lode  owner  may  now  apply  for  patent  as  in  any  ordi- 
nary case  after  first  obtaining  from  the  land  office  an  order 
to  ascertain  whether  the  lode  wras  known  to  exist  before  the 
placer  entry. — Butte  Co.,  21  L.  D.  125.  No  rules  have  been 
since  published  directing  how  much  inquiry  should  be  made, 


APPLICATION  FOE  PATENT.  591 

but  doubtless  it  would  be  required  to  give  notice  to  the  holder 
of  the  placer  patent,  who  would  be  allowed  to  appear  and  con- 
test the  petition  for  the  order.— 27  L.  D.  676.  See  page  280. 
If  the  application  is  allowed,  the  placer  claimant,  if  he  con- 
tests the  fact  that  there  was  any  valid  known  lode  on  the 
proper  date,  should  file  his  adverse  claim  or  doubtless  he  could 
allow  the  patent  to  proceed  and  still  contest,  in  ejectment 
brought  by  either  side,  the  validity  of  the  later  lode  patent,  as 
in  the  case  of  Iron  8.  Co.  v.  Campbell,  16  M.  R.  218,  135  U.  S. 
286,  10  Sup.  Ct.  Rep.  765,  34  L.  Ed.  155.  Instance  where 
patentee  of  placer  was  not  permitted  to  subsequently  patent 
a  lode  within  the  patented  placer. — 27  L.  D.  661. 

As  to  What  Constitutes  a  Known  Lode,  the  Rulings  Are  That 

there  must  be  mineral  worth  working  disclosed  at  the  time  of 
the  placer  entry.— 10  L.  D.  156,  13  Id.  86.  And  the  general 
test  on  this  class  of  points  seems  to  be  that  the  land  as  a  lode 
claim  must  have  been  of  greater  value  than  for  the  agricul- 
tural, mill  site,  placer  or  other  use,  under  which  it  was  applied 
for  and  granted.— 12  L.  D.  612, 14  Id.  54.  See  page  281. 

Necessity  to  Adverse. 

Although  not  bound  as  in  the  case  of  lode  against  lode  or 
placer  against  placer  by  failure  to  adverse,  the  lode  claimant 
is  under  the  practical  necessity  to  file  and  maintain  his  adverse, 
in  Order  to  place  his  rights  beyond  cavil  and  secure  an  express 
exception  of  his  lode,  or  a  patent  under  the  same  proceedings. 
— See  page  283. 

Group  Claims— "Location"  and  "Claim." 

In  the  case  of  the  St.  Louis  Co.  v.  Kemp,  a  placer  had  been 
patented  in  excess  of  160  acres.  The  Supreme  Court  sus- 
tained the  patent,  and  in  support  of  their  decision  asserted  that 
a  miner's  claim  might  consist  of  several  locations;  that  several 
contiguous  locations  being  purchased  by  one  man  became  his 
claim.  They  say:  "Such  is  the  general  understanding  of 


692  APPLICATION  FOR  PATENT. 

miners  and  the  meaning  they  attach  to  the  term."  Even  what 
seem  to  us  the  erroneous  impressions  of  our  Court  of  last  resort 
command  respect,  and  its  decisions  are  none  the  less  law,  even 
though  they  compel  us  to  accept  new  meanings  to  the  words  of 
our  language.  In  fact  where  claims  under  district  rules  were 
limited  to  100  feet  square  or  other  small  dimensions,  it  has 
been  very  common  to  buy  up  many  such  claims  and  record 
them  as  one  location.  The  interpretation  was,  nevertheless, 
strictly  within  the  province  and  range  of  judicial  construction. 
—104  U.  S.  636,  26  L.  Ed.  875,  11  M.  R.  673,  followed  by 
Tucker  v.  Masser,  113  U.  S.  203,  5  Sup.  Ct.  Rep.  420,  28 
L.  Ed.  979. 

Prior  to  the  Kemp  case,  supra,  the  land  office  had  treated 
each  lode  location  as  a  single  mining  claim  and  the  practice 
was  to  allow  but  one  to  be  applied  for  in  one  proceeding.  After 
the  Kemp  case,  the  department  began  to  allow  applications  for 
groups  of  lodes,  permitting  any  number  of  full  lode  claims  to 
be  patented  as  one  claim,  and  requiring  only  $500  expenditure 
on  the  entire  group.  The  only  restriction  imposed  was  that 
the  several  claims  should  be  contiguous,  i.  e.,  should  overlap  or 
touch,  not  merely  corner  with  each  other. — 33  L.  D.  560,  35 
L.  D.  485. 

This  manifestly  wrong  construction  was  adhered  to  until  the 
publication  of  what  is  now  Rule  48  of  the  regulations  requiring 
$500  on  each  location  or  for  the  group  the  aggregate  of  $500 
multiplied  by  the  number  of  locations.  In  his  official  letter  of 
June  21,  1898,  27  L.  D.  91,  the  Honorable  Secretary  considers 
the  whole  matter  and  comes  to  a  correct  definition  of  the  term 
' '  claim, ' '  as  being  the  equivalent  of  the  word  ' '  location. ' ' 

Where  several  lodes  are  thus  applied  for,  or  where  a  placer 
includes  lodes,  they  receive  only  one  survey  lot  number,  but 
the  corners  of  each  are  given  a  separate  consecutive  numerical 
designation,  beginning  with  Cor.  No.  1  in  each  case,  which  must 
be  connected  with  a  government  corner  or  U.  S.  monument. — 
Rules  135,  151.  The  survey  and  plat  should  show  the  bound- 
aries of  each  location.— 5  L.  D.  199,  6  Id.  808,  29  Id.  585. 


APPLICATION  FOR  PATENT.  593 

A  group  composed  of  lodes  and  placers  may  be  patented  if 
contiguous.— 29  L.  D.  7. 

The  rejection  from  entry  of  one  claim  of  a  group  is  a  rejec- 
tion of  the  application  to  that  extent  only. — 32  L.  D.  220. 

When  the  value  of  the  common  improvement  is  sufficient  for 
a  given  group,  $500  in  improvement  must  be  added,  after  its 
location,  for  each  new  claim  added  to  the  group,  and  all  the 
claims  then  share  equally  in  the  entire  value  of  the  improve- 
ment.—36  L.  D.  551. 

The  cost  of  a  mining  dredge  allowed  as  a  common  improve- 
ment to  a  group  of  placers. — 38  L.  D.  28. 

The  value  of  a  common  improvement,  such  as  a  shaft  or 
tunnel,  must  be  distributed  equally  to  all  the  claims  in  the 
group.— 35  L.  D.  361,  36  L.  D.  100,  551. 

Where  one  claim  of  a  contiguous  group  is  rejected  because 
of  insufficient  improvements,  the  remainder  of  the  claims, 
although  not  contiguous  because  of  such  rejection,  may  go  to 
patent  in  the  same  entry. — 40  L.  D.  17. 

What  Constitutes  Improvements. 

Underground  workings,  cross-cuts  or  tunnels  (on  or  off  the 
ground,  provided  they  are  held  by  applicant  for  its  benefit, 
and  are  bona  fide  intended  to  cut  it),  buildings,  roads,  flumes, 
fixed  machinery,  etc.,  or  the  result  of  any  other  bona  fide 
expenditures,  constitute  improvements. — Rule  157. 

Boarding  house,  office,  bunk  house,  blacksmith  shop  and 
powder  house,  when  shown  to  be  essential  to  operations. — 34 
L.  D.  556. 

Excepting  labor  which  leaves  no  trace  of  itself,  such  as 
hoisting  water,  whatever  counts  for  annual  labor  will  generally 
count  for  the  $500  improvements. — See  page  121. 

Expenditures  for  diamond  drill  holes  made  in  prospecting 
the  claim  allowed.— 40  L.  D.  498,  43  L.  D.  79. 

Roads  and  Trails.  ,    .  . 

The  department  ruled  in  34  L.  D.  556  and  37  L.  D.  404  that 
no  part  of  a  wagon  road  was  available,  but  in  43  L.  D.  128 


594  APPLICATION  FOR  PATENT. 

those  decisions  were  modified  and  a  road  or  trail  allowed  where 
it  directly  aided  in  the  conduct  of  mining  operations. 

Tunnel  Improvements. 

Undivided  interests  in  tunnels,  etc.,  held  in  common  with 
parties  who  are  not  applicants,  are  allowed  to  count  as  parcel 
of  the  necessary  $500  improvements. — 40  L.  D.  17. 

Repairs  to  tunnel  without  extending  it,  do  not  apply  to 
claims  located  subsequent  to  its  completion. — 42  L.  D.  75. 

Old  Improvements  on  the  Ground  May  Be  Purchased  from 

the  rightful  owners,  and  so  enure  to  the  benefit  of  the  appli- 
cant. The  deed  conveying  them  should  be  a  quitclaim  of  all 
vendor's  interest  in  the  claim  under  the  name  by  which  patent 
is  sought,  and  of  all  improvements  thereon,  etc.,  and  where 
abandoned  property  is  relocated  or  jumped,  the  old  improve- 
ments do  not  count  without  such  purchase. — 30  L.  D.  289,  322. 
The  department  in  an  early  circular  intimated  that  they  could 
not  even  be  purchased  (Copp,  M.  L.  259),  but  it  later  ruled 
that  the  purchaser  is  entitled  to  the  benefit  of  all  expenditures 
made  by  his  grantor. — 21  L.  D.  440.  Work  done  on  placer 
prior  to  location  held  to  count. — 20  Id.  455.  To  the  contrary. 
—36  L.  D.  9. 

Old  abandoned  improvements  are  not  available  to  the  relo- 
cator  where  there  is  no  privity  between-  the  relocator  and  the 
party  who  did  the  work.— 43  L.  D.  152. 

Expenditures  made  by  one  having  no  interest  at  the  time 
will  not  be  accepted. — 40  L.  D.  498. 

What  Not  Sufficient. 

Among  improvements  can  not  be  counted  dwelling  houses  or 
other  structures,  machinery  or  roadways  not  assQciated  with 
mining. — Rule  157. 

Successive  development,  as  working  up  stream  from  lower 
placer,  held  insufficient  for  upper  placer. — 32  L.  D.  402.  No 


APPLICATION  FOB  PATENT.  595 

part  of  improvements  on  a  group  will  be  credited  on  an  adjoin- 
ing claim  if  any  of  the  owners  of  such  claim  have  no  interest 
in  the  group. — 32  L.  D.  595. 

The  department  refused  to  accept  a  stamp  mill,  though  upon 
a  claim  and  used  exclusively  to  work  the  ore  it  produced,  on 
the  technical  ground  that  treatment  of  the  ore  is  not  a  mining 
but  a  post-mining  expenditure. — 35  L.  D.  493. 

And  further  holds  that  a  lime  kiln  on  a  limestone  placer  for 
reducing  the  limestone  to  lime  could  not  be  counted  as  part  of 
the  $500  expenditure. — 37  L.  D.  371.  "We  can  not  see  how 
these  rulings  can  stand  under  the  unqualified  words  of  the 
statute:  "Improvements  made  upon  the  claim." — R.  S.  Sec. 
2325.  37  L.  D.  371. 

The  land  office  has  ruled  that  expenditures  on  a  20-acre 
placer  will  not  avail  for  an  amended  location  enlarging  it  to 
a  160-acre  claim,  the  reason  for  which  ruling  is  not  at  all 
obvious. — 40  L.  D.  135. 

Improvements  on  Other  Claims. 

Where  a  deep  quarry  had  been  excavated  upon  one  of  a 
group  of  placer  marble  claims  which  would  develop  and  benefit 
adjoining  claims,  such  improvements  were  held  to  avail  for 
improvements  on  the  adjoining  benefited  claims. — In  re  Ameri- 
can Onyx  Co.,  42  L.  D.  417. 

Completed  Pending  Publication. 

It  is  not  essential  that  the  $500  worth  of  improvements 
should  exist  on  the  ground  at  the  time  of  the  survey.  They 
may  be  completed  at  any  time  during  the  period  of  publica- 
tion.— 29  L.  D.  491.  In  such  cases  the  Surveyor  General 
indorses  diagram  "F"  with  a  certificate  not  containing  the 
latter  part  of  "G."  The  surveyor  in  his  field  notes  describes 
such  improvements  as  may  exist,  and  adds,  in  substance: 
' '  These  improvements  are  not  worth  $500. ' '  When  completed 
the  surveyor  sends  a  special  affidavit  to  the  Surveyor  General, 
who  files- it  and  forwards  his  certificate  to  the  applicant.  An 


596  APPLICATION  FOR  PATENT. 

extra  deposit  of  $5  is  required  when  this  affidavit  is  made 
subsequent  to  the  first  filing  of  field  notes. 

The  department  holds  (overruling  previous  decisions),  that 
the  statutory  requirements  (R.  S.  Sec.  2325)  as  to  the  Surveyor 
General's  certificate  of  improvements  is  directory  only,  and 
that  it  may  be  made  after  the  expiration  of  the  sixty  days' 
publication.— 25  L.  D.  550,  26  Id.  122. 

Where  the  Applicant  Dies  Before  Entry. 

On  decease  of  applicant,  where  applicant  died  after  entry, 
the  patent  issues  in  the  name  of  the  deceased. — 2  L.  D.  762, 
39  L.  D.  574.  And  the  latest  ruling  of  the  department  is  to  the 
same  effect  where  the  party  died  before  the  entry,  overruling 
Tripp  v.  Dunphy,  28  L.  D.  14;  In  re  Graham,  40  L.  D.  128. 

Application  by  Trustee. 

Any  party  applying  to  make  entry  as  trustee  must  disclose 
fully  the  nature  of  the  trust  and  the  name  of  the  cestui  que 
trust;  and  such  trustee,  as  well  as  the  beneficiaries,  must  fur- 
nish satisfactory  proof  of  citizenship ;  and  the  names  of  bene- 
ficiaries, as  well  as  that  of  the  trustee,  must  be  inserted  in  the 
final  certificate  of  entry. — Rule  54.  A  claim  can  not  be  pat- 
ented for  the  benefit  of  a  foreign  corporation. — 10  L.  D.  641, 
20  Id.  379. 

Patent  to  Assigns. 

On  bringing  up  abstract  to  date  the  land  office  has  issued 
patents  to  purchasers  from  the  entry-man.  But  as  the  deed 
carries  the  patented  title  this  is  not  necessary ;  nor  is  it  regular. 
The  land  office  can  not  be  presumed  to  follow  title  after  entry, 
and  might  by  .such  procedure  issue  it  to  a  party  not  entitled  in 
equity  to  take  it. 

Under  present  practice  the  department  disregards  all  trans- 
fer of  interests  in  the  claim  and  issues  patent  direct  to  the 
applicant. — 33  L.  D.  127,  Rule  71.  But  the  deed  of  the  appli- 
cant carries  the  patented  title  when  granted,  to  the  buyer.— 
Slothower  v.  Hunter,  15  Wyo.  189,  88  P.  36. 


APPLICATION  FOR  PATENT.  597 

Application  Without  Record  Title. 

Where  the  title  is  old  and  complicated  a  party  may,  without 
filing  abstract  supply  the  same  by  affidavits  under  R.  S.  Sec. 
2332,  as  explained  by  Land  Office  Rules  74-77,  that  he  has 
worked  and  possessed  the  claim  for  the  limitation  period  of 

seven  or  other  number  of  years  fixed  by  the  local  statute. 

• 

Application  for  Part  of  Claim. 

An  owner  applying  for  patent  on  part  of  his  claim  includ- 
ing the  discovery  shaft  was  held  not  to  have  abandoned  the 
other  end  of  his  claim  in  Miller  v.  Hamley,  31  Colo.  495,  74 
P.  980. 

But  where  the  applying  claim  was  divided  into  two  parcels 
and  under  compulsion  of  a  land  office  ruling  the  applicant 
elected  to  enter  but  one,  it  was  held  that  such  election  was  an 
abandonment  of  the  other  parcel. — Gurney  v.  Brown,  32  Colo. 
472,  77  P.  357. 

Entry  may  be  made  of  part  of  a  claim  containing  the  dis- 
covery, although  the  applicant  does  not  own  the  other  portion. 
—39  L.  D.  524. 

Conflicting  Applications. 

Where  an  application  is  pending  or  entry  has  been  made,  a 
subsequent  application  for  the  same  land  should  not  be 
accepted.— 26  L.  D.  81,  29  Id.  29,  114,  226,  31  Id.  59,  32  Id. 
220 ;  and  no  adverse  need  be  filed  against  a  subsequent  applica- 
tion erroneously  accepted. — 29  Id.  160;  Steel  v.  Gold  Co.,  15 
M.  R.  292,  18  Nev.  80,  1  P.  448.  An  adverse  suit  by  entry-man 
does  not  waive  rights  acquired  under  the  entry. — 29  L.  D.  114. 
But  the  government  will,  in  some  instances,  take  notice  of  an 
adverse  by  prior  applicant  and  stay  proceedings. — 22  Id.  629, 
25  Id.  263. 

The  Surveyor  General  gives  to  any  applicant  an  approved 
survey  showing  the  conflicts  with  prior  surveys,  but  not  exclud- 
ing them  as  against  the  survey  asked  for,  and  allowing  the 
claimant  to  proceed  as  he  may  or  can,  to  apply  for  patent  for 


598  APPLICATION  FOB  PATENT. 

the  entire  ground  within  his  exterior  lines,  although  wholly  or 
partly  covered  by  previous  patents.  It  is  left  to  the  land  office 
to  bar  the  application  so  far  as  it  pretends  to  include  ground 
previously  patented  or  applied  for. — See  page  171. 

Variance  Between  the  Locus  and  the  Record  of  Claims. 

• 
Where  no  conflict  between  official  surveys  is  shown  by  the 

records  but  a  conflict  in  fact  exists;  or,  where  a  conflict  is 
shown  by  the  records  when  none  in  fact  exists  as  the  claims  are 
staked  on  the  ground,  the  department  will  order  a  hearing  to 
determine  the  actual  locus  of  the  claims.— 33  L.  D.  91,  183. 
See  page  62. 

The  position  of  all  conflicting  claims  "must  be  determined 
as  the  claims  are  defined  and  established  upon  the  ground," 
and  all  errors  in  the  records  must  give  way  to  such  facts. — 39 
L.  D.  546. 

Allowing  Application  to  Sleep. 

Failure  to  prosecute  application  to  completion  within  a  rea- 
sonable time  after  termination  of  proceedings  constitutes 
waiver  of  rights  secured  under  the  application. — 29  L.  D.  62, 
301,  308,  359,  401,  35  Id.  27,  Rule  56.  A  delay  beyond  the  end 
of  the  calendar  year  after  publication  held  fatal,  where  a  hos- 
tile relocation  had  been  made.— 31  L.  D.  69,  32  Id.  200.  An 
excusable  delay  must  be  one  caused  by  adverse  proceedings 
under  the  mining  laws. — 34  L.  D.  56.  Upon  an  unexcused 
delay  of  three  years  after  publication  the  entry  should  be  can- 
celed.— 40  L.  D.  542.  Where  the  delay  was  held  excusable  by 
the  local  officers,  the  entry  should  not  be  canceled  upon  the 
protest  of  a  relocator.— 39  L.  D.  574. 

Miscellaneous  Rulings  on  Patent  Application. 

Where  application  is  begun  in  the  wrong  land  district  pro- 
ceedings must  be  de  novo,  after  error  discovered. — 17 
L.  D.  282. 


ADVERSE  CLAIM.  599 

In  the  case  of  the  Alaska  Placer,  which  was  partly  in  one 
land  district  and  partly  in  another,  the  Secretary  ruled  that 
posting  on  the  claim  and  in  the  land  office,  and  the  newspaper 
publication  must  be  made  in  both  districts. — 34  L.  D.  40.  This 
ruling  necessitates  practically  a  separate  and  complete  appli- 
cation in  each  district. 

When  the  land  office  is  closed  during  a  part  of  the  period  of 
sixty  days  the  time  of  closing  should  not  be  counted  as  part 
of  the  advertising  period. — 1  L.  D.  584,  Rev.  Ed.  572.  A  claim 
already  patented  can  not  be  made  the  basis  of  a  second  applica- 
tion for  more  surface. — 9  L.  0.  113. 

A  co-owner  omitted  from  application  can  not  by  subsequent 
forfeiture  proceedings  against  the  applicant,  acquire  right  in 
himself  to  make  entry.— 32  L.  D.  93. 

A  discovery  on  the  dip  of  a  lode  whose  apex  is  inside  a  prior 
valid  location  is  void,  and  on  protest  alleging  that  fact  the 
department  will  determine  the  question. — 33  L.  D.  142. 


ADVERSE  CLAIM. 


Sixty  Days  to  File. 

E.  S.  Sec.  2325.  •  *  •  —If  no  adverse  claim  shall  have  been  filed 
with  the  register  and  the  receiver  of  the  proper  land  office  at  the  expira- 
tion of  the  sixty  days  of  publication,  it  shall  be  assumed  that  the 
applicant  is  entitled  to  a  patent,  upon  the  payment  to  the  proper  officer 
of  five  dollars  per  acre,  and  that  no  adverse  claim  exists;  and  thereafter 
no  objection  from  third  parties  to  the  issuance  of  a  patent  shall  be  heard, 
except  it  be  shown  that  the  applicant  has  failed  to  comply  with  the  terms 
of  this  chapter. 

Eight  months  after  publication  allowed  in  Alaska.  See 
Rule  84  (A),  page  513. 

Extent— Boundaries — Stays  Proceedings. 

E.  S.  Sec.  2326. — Where  an  adverse  claim  is  filed  during  the  period  of 
publication,  it  shall  be  upon  oath  of  the  person  or  persons  making  the 
Bame,  and  shall  show  the  nature,  boundaries,  and  extent  of  such  adverse 


600  ADVERSE  CLAIM. 

claim,  and  all  proceedings,  except  the  publication  of  notice  and  making 
and  filing  of  the  affidavit  thereof,  shall  be  stayed  until  the  controversy 
shall  have  been  settled  or  decided  by  a  court  of  competent  jurisdiction, 
or  the  adverse  claim  waived. 

Thirty  Days  to  Bring  Suit. 

It  shall  be  the  duty  of  the  adverse  claimant,  within  thirty  days  aftei 
filing  his  claim,  to  commence  proceedings  in  a  court  of  competent  juris- 
diction, to  determine  the  question  of  the  right  of  possession,  and  prosecute 
the  same  with  reasonable  diligence  to  final  judgment;  and  a  failure  so  to 
do  shall  be  a  waiver  of  his  adverse  claim.  • 

An  adverse  claim  must  be  made  during  the  period  of  sixty 
days  publication,  which  is  construed  to  mean  on  or  before  the 
sixtieth  day  after  the  date  of  first  newspaper  publication,  such 
date  being  excluded'in  the  calculation. — 13  L.  D.  286.  See 
page  606. 

The  proceedings  are  as  follows:  The  adverse  claimant  sub- 
scribes and  verifies  his 

HH.     ADVERSE  CLAIM. 

United  States  Land  Office  at  Denver,  Colorado : 

In  the  matter  of  the  application  of  Carroll  Carter  for  a  United  States 
patent  to  the  Busy  Bee  and  Republican  lode  mining  claims,  situate  in 
Wisconsin  mining  district,  County  of  Gilpin,  State  of  Colorado. 
To  the  Register  and  Receiver  of  the  United  States  Land  Office,  and  to  the 

above  named  claimant: 

WHEREAS,  Carroll  Carter  did,  on  the  17th  day  of  April,  A.  D.  1916, 
file  in  the  district  land  office  of  the  United  States,  at  Denver,  Colorado, 
a  certain  plat  of  a  survey  of  certain  lodes  together  with  his  application  for 
a  United  States  patent  for  said  lodes,  naming  and  calling  the  said  lodes 
in  said  plat  and  application  the  Busy  Bee  and  Eepublican  lodes,  situate  in 
Wisconsin  mining  district,  County  of  Gilpin,  State  of  Colorado;  said 
survey  and  plat  being  designated  as  mineral  survey  No.  21000  A,  and 
consisting  of  1500  linear  feet  together  with  surface  ground  150  feet  in 
width,  on  each  of  said  lodes,  and  the  said  Carroll  Carter  did,  at  the  same 
time  and  place,  give  notice  that  he  would  apply  for  a  United  States 
patent  for  the  above  described  lodes  and  premises  in  substance  as  follows : 

[Here  attach  copy  of  newspaper  publication.'] 

AND,  WHEREAS,  The  first  publication  of  said  notice  of  said  application 
appeared  in  the  Weekly  "Register  Call,  a  weekly  newspaper  published  at 
Central  City,  in  said  County  and  State  on  the  15th  day  of  April,  A.  D. 
1916. 


ADVERSE  CLAIM.  601 

Now,  THEREFORE,  I,  Charles  W.  Bishop,  a  citizen  of  the  United  States 
over  the  age  of  twenty-one  years,  residing  in  and  my  postoffice  address 
being  Denver,  in  the  County  of  Denver,  in  said  State,  do,  on  this  third 
day  of  June,  A.  D.  1916,  enter  this,  my  protest,  and  adverse  claim  against 
the  issuing  of  a  patent  to  the  said  Carroll  Carter  for  his  pretended  claim 
upon  the  so-called  Busy  Bee  lode,  as  set  forth  in  his  said  plat  and  field 
notes  as  aforesaid,  for  the  following  reasons,  to-wit: 

1.  The    surface    ground    and    veins    or   lodes    contained    therein    as 
set  forth  and  described  in  the  plat  and  field  notes  of  the  said  Carroll 
Carter,  or  a   great  portion  thereof,  are  not  the  property  of   the   said 
applicant,  neither  is  he  entitled  to  hold  the  same  under  or  by  virtue  of  the 
local  laws,  rules  and  customs  of  miners  in  said  mining  district,  the  laws 
of  the  State  of  Colorado,  or  the  Statutes  of  the  United  States  relating  to 
mining  claims. 

2.  Because  a  great  portion  of  the  premises  described  in  said  plat  arid 
notice  of  said  applicant,  and  claimed  by  him  as  the  so-called  Busy  Bee 
lode,  is  claimed  adversely,  and  is  owned  by  this  protestant,  and  is  in  fact 
a  portion  of  the  Elephant  lode,  as  will  appear  by  reference  to  an  abstract 
of  title  herewith  filed,  made  a  part  of  this  protest  and  marked  Exhibit  A. 

3.  Because  this  protestant  (and  his  grantors)  have  held,  occupied  and 
possessed  a  great  portion  of  the  premises  set  forth  and  described  by  the 
said  Carroll  Carter  in  his  plat  and  notice  of  the  so-called  Busy  Bee  lode, 
long  prior  to  the  pretended  discovery  and  location  of  the  so-called  Bu.-y 
Bee  lode;   such  occupation  and  possession  of  this  protestant    (and  his 
grantors)  having  been  under  and  by  virtue  of  a  full  compliance  with  the 
local  laws,  rules  and  customs  of  said  mining  district,  and  the  laws  of  said 
State,  and  of  the  United  States,  pertaining  to  mineral  lands. 

4.  Because  this  protestant  (and  his  grantors)  have  held,  occupied  and 
possessed  all  that  portion  of  the  so-called  Busy  Bee  lode,  as  represented 
on  the  plat  of  a  survey  made  by  Thomas  L.  Darby,  United  States  mineral 
surveyor,  and  colored  red,  said  plat  of  said  survey  being  herewith  filed, 
marked  Exhibit  B,  and  made  a  part  of  this  protest,  and  have  held,  occu- 
pied and  possessed  the  same  long  prior  to  the  pretended  discovery  and 
location   of   the   so-called   Busy   Bee  lode.     And   this   protestant   is   the 
original  discoverer  and  locator  of  said  Elephant  lode  (or  is  a  bona  fide 
purchaser  for  a  valuable  consideration,  from  or  through  the  origmal  dis- 
coverer and  locator  of  said  Elephant  lode,  by  conveyances),  as  shown  on 
said  abstract.   See  Rule  81. 

5.  Because  a  valid  discovery,  location  and  record  of  said  Elephant 
lode  was  made  by  this  protestant  (or  his  grantors),  in  strict  compliance 
with  said  local  laws,  rules  and  customs,  and  the  laws  of  the  State  of 
Colorado  and  of  the  United  States,  and  while  the  same  was  vacant  mineral 
land  of  the  United  States  open  to  occupation  long  prior  to  any  pretendc  1 
discovery  or  location  thereof  by  said  Carrol  Carter  (or  his  grantors)  and 


602  ADVERSE  CLAIM. 

said  Elephant  lode  hath  been  occupied  and  possessed  as  aforesaid,  ever 
since  its  discovery  as  aforesaid,  by  this  protestant  (and  his  grantors), 
under  and  by  virtue  of  such  discovery,  location  and  record. 

6.  Because  the  discovery  shaft  of  the  so-called  Susy  Bee  lode  was  not 
of  the  legal  depth  of  ten  feet  from  the  lowest  part  of  the  rim  at  the  sur- 
face, as  required  by  law  at  the  date  of  the  pretended  record  of  the  same, 
and  has  never  been  since  sunk  to  that  depth.  7,  etc.,  8,  etc. 

WHEREFORE,  This  protestant  enters  this  his  protest  and  adverse  claim 
against  the  issuapce  of  a  patent  to  the  said  Carroll  Carter  for  his  claim 
upon  the  so-called  Susy  Bee  lode. 

CHARLES  W.  BISHOP. 

STATE  OF  COLORADO,        I  sg 
City  and  County  of  Denver.  ) 

On  this  3rd  day  of  June,  A.  D.  1916,  before  me,  the  subscriber,  a 
Notary  Public  in  and  for  said  county,  personally  appeared  the  above 
named  Charles  W.  Bishop,  who,  being  first  duly  sworn,  saith  that  he  is  the 
adverse  claimant  named  in  the  foregoing  protest  and  adverse  claim  above 
subscribed  by  him.  That  he  has  read  the  same  and  knows  the  contents 
thereof;  that  the  same  is  true  in  substance  and  in  fact;  and  that  the 
said  adverse  claim  la  made  in  good  faith  and  to  protect  his  better  and 
prior  title. 

CHARLES  W.  BISHOP. 

Swon*  and  subscribed  before  me,  this  3rd  day  of  June,  A.  D.  1916. 

My  commission  expires  March  4,  1918. 

[SEAL.]  ALICE  HATCH, 

Notary  Public. 

To  the  above  reasons  others  may  be  added  where  specific 
facts  are  known  going  to  the  invalidity  of  the  claim  sought  to 
be  patented,  but  in  every  case  allege  that  the  claims  conflict 
and  that  the  adverse  claimant  is  owner  of  the  conflicting  area 
and  veins,  as  in  paragraph  No.  2  of  the  above  form.  The  first 
five  paragraphs  constitute  a  good  statement  of  an  adverse  right, 
according  to  the  various  land  office  rulings  and  others  are 
added  only  as  precautionary. 

Exhibit  "A"  Is  an  Abstract  of  Title  Certified  as  in  Form 

"N"  and  should  contain  a  certified  copy  of  the  location  cer- 
tificate. But  failure  to  file  the  abstract  within  the  period  of 
publication  (15  L.  D.  45)  as  well  as  failure  to  furnish  the 
certified  copy,  have  been  held  not  fatal.— 14  L.  0.  237. 


ADVERSE  CLAIM.  603 

Exhibit  "B"  Is  a  Plat  Made  by  a  U.  S.  Mineral  Surveyor, 

showing  the  interference  of  the  two  claims  certified  as  follows : 

I  hereby  certify  that  the  above  diagram  correctly  shows  the  Elephant 
lode  in  its  entirety,  its  relative  situation  or  position  to  the  Busy  See  lode 
and  the  extent  of  the  conflict  claimed  to  exist  between  said  Busy  Bee 
lode  and  said  Elephant  lode  as  actually  surveyed  by  me. 

THOMAS  L.  DAKBY, 
U.  8.  Mineral  Surveyor. 

When  it  is  impossible  to  procure  an  actual  survey,  as  of  a 
snow-bound  claim,  an  adverse  claim  showing  the  nature,  extent 
and  boundaries  of  the  conflict,  stating  the  reasons  why  the 
claim  could  not  be  reached  for  survey,  will  be  sufficient. — 1 
L.  D.  592,  Rev.  Ed.  582 ;  Hoffman  v.  Beecher,  12  Mont.  489,  31 
P.  92,  17  M.  R.  503.  The  plat  need  not  be  made  by  a  U.  S. 
surveyor.— 27  L.  D.  358,  29  Id.  460;  Anchor  v.  Howe,  50 
F.  366. 

No  plat  required  where  claimant  and  adverse  claimant  hold 
by  legal  subdivisions. — Rule  82. 

Improvements. 

The  amount  of  improvements  on  the  adversing  claim  is  im- 
material, and  though  fprmerly  required,  need  not,  under  the 
present  rules,  be  shown,  or  their  value  stated. — Rule  82. 

Separate  Adverse  Claims. 

Where  there  are  several  applications  to  be  adversed  by  a 
single  lode,  a  separate  adverse  claim  with  its  plat  and  abstract 
must  be  filed  in  each  case.  Where  the  adverse  claimant  has 
several  lodes  with  which  he  intends  to  adverse  a  single  applica- 
tion, the  practice  is  to  combine  them  in  a  single  adverse  claim. 

Where  and  By  Whom  Verified. 

An  adverse  claim  is  usually  verified  by  the  adverse  claimant 
or  one  of  the  adverse  claimants  and  within  the  land  district. 

But  by  the  Act  of  April  26,  1882  (post  p.  647),  it  may  be 
verified  by  the  adverse  claimant  beyond  the  land  district,  or 
by  an  agent  or  attorney  in  fact  cognizant  of  the  facts  stated, 


604  ADVERSE  CLAIM. 

who  must  swear  to  his  agency  and  furnish  proof  thereof. — 
Rules  78,  79.  Such  agent  must  make  his  verification  in  the 
land  district. — Rule  80 ;  34  L.  D.  314.  A  corporation  verifies 
either  by  its  executive  officer  (president)  or  its  agent  thereto 
authorized.  It  may  verify  outside  of  the  land  district  at  its 
principal  place  of  business. — 42  L.  D.  99.  And  if  the  adverse 
claimant  is  a  non-resident  or  absent  from  the  district  and  veri- 
fies it  personally  he  may  make  such  verification  wherever  he 
may  be,  before  the  clerk  of  any  Court  of  record  or  a  notary 
public,  anywhere  within  the  United  States. 

In  cases  of  emergency  it  is  a  legitimate  expedient  to  have  the 
intending  adverse  claimant  convey  to  a  third  party  within  the 
district,  who  then  makes  and  verifies  the  adverse  claim  pre- 
cisely as  if  he  were  the  real,  as  he  becomes  in  fact  the  legal, 
owner  of  the  adversing  claim.  But  since  the  act  allowing 
verification  by  the  adverse  claimant  beyond  the  district,  or  the 
filing  by  an  agent,  this  course  need  seldom  be  resorted  to. 

Form  of  Adverse  and  Verification  by  Agent. 

Proceed  as  in  form  "HH"  to  the  last  paragraph  and  insert : 
Wherefore  this  protestant,  by  Charles  T.  Limberg,  his  duly  authorized 
agent  and  attorney  in  fact,  who  is  personally  cognizant  of  the  facts  herein 
stated,  enters  this  his  protest  and  adverse  claim  against  the  issuance  of 
a  patent  to  the  said  Carroll  Carter  for  his  claim  upon  the  so-called  Busy 
Bee  lode. 

CHARLES  W.  BISHOP, 
By  Charles  T.  Limberg, 
His  agent  and  attorney  in  fact. 

STATE  OF  COLORADO,          1 
City  and  County  of  Denver.     JSS' 

On  this  3rd  day  of  June,  A.  D.  1916,  before  me,  the  subscriber,  a 
Notary  Public  in  and  for  said  City  and  County,  personally  appeared  the 
above  named  Charles  T.  Limberg,  who,  being  first  duly  sworn,  saith  that 
he  is  the  duly  authorized  agent  and  attorney  in  fact  of  the  above  named 
Charles  W.  Bishop,  adverse  claimant  named  in  the  foregoing  protest  and 
adverse  claim  above  subscribed  by  affiant  as  will  further  appear  by 
his  power  of  attorney  hereto  attached  marked  Exhibit  C;  that  affiant 
has  read  the  foregoing  protest  and  adverse  claim,  and  is  cognizant  of 
the  facts  therein  stated,  and  that  the  same  is  true  in  substance  and  in 


ADVERSE  CLAIM.  605 

fact,  and  is  made  in  good  faith  to  protect  the  prior  and  better  title  of 
his  said  principal. 

CHARLES  T.  LIMBERO. 

Sworn  and  subscribed  before  me  this  3rd  day  of  June,  A.  D.  1916. 

My  commission  expires  March  4,  1918. 

[SEAL.]  ALICE  HATCH, 

Notary  Public. 

By  Co- Owner. 

A  single  co-owner  may  make  and  verify  the  adverse  claim 
"on  behalf  of  himself  and  his  co-owners,"  which  phrase 
should,  in  the  form  "HH,"  follow  the  name  of  the  protestant 
whenever  it  occurs  or  where  the  context  requires  it,  when  an 
adverse  is  so  made. 

And  it  is  held  that  one  co-owner  may  adverse  although 
another  co-owner  refuse  to  join  him. 

And  one  co-owner  can  not  withdraw  his  adverse  so  as  to 
prejudice  another  who  has  joined  with  him. 

Against  Co-Tenant. 

Where  one  or  more  co-tenants  apply  for  patent,  omitting  the 
name  of  one  or  more  of  their  associates,  the  title  received 
enures  to  the  benefit  of  all  the  co-owners. — Turner  v.  Sawyer, 
150  U.  S.  578,  14  Sup.  Ct.  Hep.  192,  37  L.  Ed.  1189,  17  M.  R. 
683 ;  Brundy  v.  May  field,  15  Mont.  201,  38  P.  1067 ;  Malaty  v. 
Rice,  21  M.  R.  29,  15  Colo.  App.  364,  62  P.  228.  Nevertheless, 
the  legal  title  passes  by  the  patent,  to  the  patentees  and  to 
them  only,  and  while  the  ousted  co-tenant  will,  in  equity,  upon 
proper  proceedings  be  declared  a  beneficiary  under  the  patent, 
yet  if  he  is  aware  of  the  proceeding  in  time  and  has  opportun- 
ity, undoubtedly  the  better  course  is  to  adverse.  By  Rule  53 
the  land  office  regards  a  co-tenant  in  such  case  as  a  protestant 
rather  than  an  adverse  claimant  and  does  not  require  suit  in 
support  of  the  protest;  but  if  he  elects  to  bring  suit  the  appli- 
cation will  be  stayed  to  await  its  determination. — 25  L.  D.  495, 
26  Id.  220.  On  protest  filed  the  department  will  give  co-owners 
opportunity  to  litigate  in  Court  the  disputed  title. — 30  Id.  304. 
The  distinction  here  attempted  is  refined.  There  is  nothing  in 


606  ADVEKSE  CLAIM. 

the  Turner  case  construed  in  25  L.  D.  495  to  intimate  that  a 
co-tenant  may  not,  if  he  wish,  file  his  adverse  claim. 

The  provisions  of  Sec.  2325  were  intended  only  to  apply  to 
adverse  claims  arising  out  of  conflicting  locations,  and  not  to 
controversies  between  co-owners.  But  if  one  co-tenant  he 
ousted  he  has  the  common  law  right  to  sue,  and  it  does  not 
weaken  his  case  that  he  has  filed  an  adverse  claim  and  brings 
suit  in  support  of  it. — Davidson  v.  Fraser,  36  Colo.  1,  4 
L.  R.  A.  (N.  S.)  1126,  84  P.  695;  Allen  v.  Blanche  M.  Co.,  46 
Colo.  199, 102  P.  1072. 

The  several  remedies  open  to  an  ousted  co-tenant  in  such 
case  are  considered  in  O'Hanlon  v.  Ruby  Gulch  Co.,  48  Mont. 
65,  135  P.  914,  which  also  holds  that  such  a  tenant  may  lose 
his  rights  by  laches. 

Time  to  Pile. 

The  period  is  strictly  limited  to  60  days,  excluding  the  first 
day.— 13  L.  D.  718,  28  Id.  224. 

To  instance:  Where  first  publication  was  on  October  19 
they  excluded  the  first  day  and  counted : 

October  12  days ; 

November  30  days ; 

December  18  days ; 

total  60  days,  and  made  December  18th,  the  last  day  on  which 
an  adverse  could  be  filed.— 13  L.  D.  286, 16  L.  D.  101. 

Time  Can  Not  Be  Extended. 

No  adverse  claim  can  be  received  after  the  expiration  of  the 
statutory  period,  and  the  department  is  without  authority  to 
enlarge  the  time  for  filing. — 29  L.  D.  467. 

So  also  the  30  days'  time  allowed  for  commencing  suit  can 
not  be  extended ;  the  law  limiting  the  period  is  mandatory ;  if 
the  papers  intended  to  commence  suit  are  delayed  in  the  mail, 
or  action  is  delayed  through  the  agency  of  an  attorney  cor- 
rupted, the  land  office  can  afford  no  relief. — 2  L.  D.  707; 


ADVERSE  CLAIM.  607 

Sickel,  190,  320.  But  the  department  will  not  review  a  judicial 
determination  that  a  suit  was  initiated  within  the  statutory 
period.— 23  L.  D.  20,  37  L.  D.  484. 

Republication. 

When  for  any  cause  a  republication  is  required,  the  adverse 
claim  must  be  re-filed  during  the  second  period  of  advertising ; 
but  no  additional  filing  fee  is  charged. — Sickel,  313. 

Where  there  has  been  a  material  misdescription  in  the  pub- 
lished notice  a  republication  (and  in  this  case  a  resurvey)  will 
be  ordered,  although  applicant  has  already  made  final  entry. — 
17  L.  D.  565. 

Sunday — Holidays. 

It  has  been  ruled  that  an  adverse  may  be  filed  on  Sunday, 
when  the  last  day  falls  on  Sunday ;  and  out  of  office  hours  on 
any  day ;  but  that  the  receiving  and  filing  out  of  office  hours,  or 
on  Sunday,  is  not  compulsory  upon  the  officers. — 6  L.  0.  73, 
23  L.  D.  546.  But  if  the  60th  day  fall  on  Sunday  the  adverse 
is  too  late  if  filed  on  the  succeeding  Monday. — 34  L.  D.  568, 
overruling  contrary  holdings  in  8  L.  D.  430  and  13  L.  D.  718 
where  the  last  day  fell  on  a  legal  holiday. 

Amendment. 

An  adverse  claim  can  not  be  withdrawn  for  amendment ;  but 
if  a  material  defect  should  be  discovered,  there  would  be  noth- 
ing to  prevent  the  filing  of  a  second  adverse,  complete  in  itself, 
provided  the  60  days  had  not  expired. — Copp,  121,  155,  227 ; 

Sickel,  208. 

An  Appeal  Lies  from  the  Rejection  of  an  Adverse  Claim. 

— 13  L.  D.  718.  In  an  instance  where  an  adverse  had  been 
filed  which  was  dismissed  as  defective  but  the  adverse  claimant 
brought  his  suit  and  filed  his  certificate,  the  land  office  declined 
to  allow  further  action  on  the  application  until  the  decision  of 
the  suit.— 2  L.  D.  706. 


608  ADVERSE  CLAKI. 

If  the  adverse  claim  is  dismissed  by  the  local  land  office  the 
adverse  claimant  must  nevertheless  bring  suit  within  the  30 
days  or  his  rights  will  be  gone  although  he  sustain  his  conten- 
tion on  appeal  to  "Washington  from  the  dismissal  of  his  adverse. 
This  manifestly  wrong  and  unjust  ruling  was  the  final  result 
of  all  possible  holdings  on  the  point,  in  the  various  branches 
of  the  Land  Department,  in  the  case  of  a  lode  called  the  "No 
Mistake." — 22  L.  D.  274.  Similar  ruling  where  the  adverse 
was  rejected.— 35  L.  D.  304. 

What  Claims  Should  Adverse. 

Of  course  lode  must  adverse  lode  and  mill  site  must  adverse 
mill  site  and  placer  must  adverse  placer  or  all  pretense  of  prior 
title  will  cease  to  be  of  avail. — See  pages  171  and  299. 

A  placer  must  adverse  a  lode  application ;  otherwise  the  lode 
will  take  the  full  area.  A  lode  claim  need  not  necessarily 
adverse  a  placer  because  it  may  rely  on  the  statutory  exclusion 
of  known  lodes,  but  it  is  safer  to  file  an  adverse  as  the  best 
means  of  protecting  its  title. — 26  L.  D.  627. 

San  Francisco  Co.  v.  Duffield  was  an  adverse  suit  by  lode 
against  placer,  and  it  was  held  properly  brought. — 201  F.  830, 
120  C.  C.  A.  160. 

The  department  held  in  1  L.  D.  566  (Rev.  Ed.  555)  that  a 
mill  site  must  adverse  a  lode  location,  but  to  the  contrary  in 
25  L.  D.  7,  36  L.  D.  144.  And  in  still  other  cases  (29  L.  D.  522, 
35  Id.  495)  it  holds  that  an  adverse  is  not  allowed  in  any 
instance  between  mineral  and  non-mineral  claimants;  that  a 
suit  supporting  it  will  not  stay  proceedings  on  an  application 
for  a  mineral  patent ;  that  the  question  of  known  mineral  value 
must  be  decided  by  the  department  and  that  a  decision  of  that 
point  by  a  Court  does  not  conclude  the  department.  Lindley, 
Sees.  717,  724,  apparently  takes  the  same  position. 

But  there  have  been  frequent  instances  where  such  adverses 
have  been  filed  and  sustained. — Shafer  v.  Const ans,  3  Mont. 
369,  1  M.  R.  147;  Durgan  v.  Redding,  103  F.  914;  deary  v. 
Skiffich,  28  Colo.  362,  89  Am.  St.  Rep.  207,  65  P.  59,  21  M.  R. 


ADVERSE  CLAIM.  609 

284.  The  mineral  character  of  the  land  is  by  no  means  the  only 
issue  which  may  be  involved  in  such  suits,  and  the  procedure  to 
obtain  a  mill  site  patent  being  authorized  in  the  same  act 
which  prescribes  the  procedure  for  patenting  mining  claims 
proper,  we  do  not  perceive  strength  in  the  contention  that  they 
can  not  adverse  each  other.  Even  lot  owners  have  been 
allowed  to  adverse.— Banner  v.  Meikle,  82  F.  697,  19  M.  R.  83 ; 
Young  v.  Goldsteen,  97  F.  303.  But  the  later  case  of  Wright 
v.  Hartville,  13  Wyo.  497,  81  P.  649,  82  P.  450,  takes  the  same 
view  as  the  land  office  on  the  whole  question  of  adverses 
between  mineral  and  non-mineral  claimants. 

There  is  an  evident  distinction  between  the  case  of  the  lot 
owner  and  the  mill  site  owner  more  favorable  to  the  right  of 
the  mill  site  owner  to  adverse. 

Under  this  unsatisfactory  status  of  the  authorities  it  is 
advisable  to  file  both  adverse  and  protest,  as  there  is  no  cer- 
tainty that  the  land  office  will  maintain  its  present  position  as 
to  the  right  of  a  mill  site  to  adverse  a  mining  application  and 
vice  versa. 

The  holder  of  a  right  to  purchase  a  mining  claim  need  not 
adverse  an  application  for  patent ;  because  he  is  in  privity  with 
the  title.— Nowell  v.  McBride,  162  F.  432,  89  C.  C.  A.  318. 

Miscellaneous  Eulings. 

An  adverse  claim  substantiality  defective  may  be  rejected. — 
3  L.  0.  18,  9  L.  0.  5.  But  if  it  show  the  nature,  boundaries 
and  extent  of  the  claim,  the  land  office  will  accept  it  even 
though  it  do  not  meet  all  the  requirements  of  the  regulations. 
—27  L.  D.  358. 

The  land  office  is  not  bound  to  receive  an  adverse  claim  when 
the  filing  fee  is  not  paid  or  tendered. — 29  L.  D.  413. 

Where  there  is  no  surface  conflict  an  adverse  filed  to  antici- 
pate conflict  expected  on  the  dip,  will  not  be  received. — 6  L.  D. 
318,  29  Id.  662;  Champion  Co.  v.  Wyoming  Co.,  75  Gal.  78, 
16  M.  R.  145,  16  P.  513. 


610  ADVERSE  CLAIM. 

An  adverse  based  on  a  claim  located  after  the  publication 
began  not  containing  allegations  denying  the  validity  of  the 
prior  claim  adversed,  will  be  rejected. — 7  L.  0.  50;  contra,  2 
L.  D.  699. 

Suit  in  Support  of  Adverse. 

After  the  adverse  claim  is  filed,  the  adverse  claimant  must 
bring  suit  for  the  premises  in  dispute  within  30  days,  under 
the  terms  of  R.  S.  Sec.  2326.  See  page  599. 

If  his  suit  is  not  brought  within  the  30  days  the  adverse 
claimant  has  no  standing  in  the  land  office  except  as  a  mere 
protestant;  and  the  applicant  may  proceed  to  enter,  notwith- 
standing the  adverse.— 14  L.  D.  180,  35  Id.  550.  . 

It  has  been  held  that  failure  to  bring  suit  within  the  30-day 
period  must  be  specially  pleaded  and  can  not  be  availed  of  for 
the  first  time  on  appeal. — Providence  Co.  v.  Marks,  1  Ariz.  74, 
60  P.  938. 

A  suit  in  Nevada  is  commenced  when  complaint  is  filed  and 
summons  issued.  The  adverse  claimant  filed  his  complaint 
within  the  30  days,  but  summons  did  not  issue  or  at  least  was 
not  placed  in  the  Sheriff's  hands  until  some  time  thereafter. 
But  the  defendant  entered  a  general  appearance  and  filed  a 
demurrer  which  was  held  a  waiver  of  any  right  to  object  to  the 
failure  to  issue  summons. — Harris  v.  Helena  M.  Co.,  29  Nev. 
506,  92  P.  1. 

The  Proper  Court  Is  Usually  the  District  Court  of  the  County 

where  the  mine  is  situate,  except  in  those  cases  where  the  facts 
of  value  and  diverse  citizenship  are  such  that  the  U.  S.  District 
Court  may  have  jurisdiction. 

It  has  been  authoritatively  held  that  an  adverse  claim  suit 
presents  no  federal  question  and  that  the  U.  S.  Courts  have 
no  jurisdiction  on  that  ground. — Blackburn  v.  Portland  Co., 
175  U.  S.  571,  20  Sup.  Ct.  Rep.  222,  44  L.  Ed.  276,  20  M.  R. 
358 ;  Mt.  View  Co.  v.  McFadden,  180  U.  S.  533,  21  Sup.  Ct. 
Rep.  488,  45  L.  Ed.  656. 


ADVERSE  CLAIM.  611 

Even  when  the  Courts  of  the  United  States  have  undoubted 
jurisdiction  the  State  Court  is  not  ousted,  but  the  suit  may  be 
commenced  in  the  State  Court,  subject  to  defendant's  right  of 
removal. 

Proof  of  Commencing  Suit. 

After  the  complaint  is  filed  a  certificate  should  be  made  and 
signed  by  the  clerk  of  the  Court  and  filed  in  the  local  land  ofiice 
in  substance  as  follows : 

JJ.    CERTIFICATE  OP  SUIT. 

STATE  OP  COLORADO, 
County  of  Gilpin. 

I,  Morris  Haszard,  Clerk  of  the  District  Court  of  said  County,  do 
hereby  certify  that  Charles  W.  Bishop  did  on  the  10th  day  of  June, 
A.  D.  1916,  commence  an  action  in  said  Court  against  Carroll  Carter, 
to  sustain  an  adverse  claim  against  the  Bvsy  Bee  lode,  survey  lot  No. 
21000  A,  situate  in  Wisconsin  mining  district,  Gilpin  County,  Sta,te  of 
Colorado,  and  to  recover  possession  of  all  that  parcel  of  the  Elephant  lode 
embraced  within  the  lines  of  said  survey  lot,  and  that  said  action  is  now 
pending  and  undetermined  in  said  Court. 

Attest  my  hand  and  the  seal  of  said  Court  at  Central  City  this  10th  day 
of  June,  A.  D.  1916. 

[SEAL  OF  COURT.]  MORRIS  HAZZARD, 

Clerk. 

But  the  failure  to  file  this  certificate  is  not  fatal  under 
Rule  88,  which  requires  the  applicant  to  file  certificate  showing 
affirmatively  that  no  suit  has  been  brought. 

When  a  Suit  Is  Already  Pending  Between  the  Same  Parties 

for  the  recovery  of  the  ground  in  conflict  at  the  time  of  the 
filing  of  the  adverse,  it  has  been  ruled  that  such  suit  may 
stand  as  the  suit  to  support  the  adverse  and  no  new  suit  need 
be  brought. — 8  L.  D.  437,  29  Id.  194.  In  such  case  the  plain- 
tiff can  not  dismiss  so  as  to  leave  the  adverse  without  suit 
supporting  it.— Axiom  Co.  v.  Little,  6  S.  D.  438,  61  N.  W.  441. 
If  no  adverse  is  filed,  a  pending  suit  will  not  stay  patent  pro- 
ceedings.—33  L.  D.  187. 


612  ADVERSE  CLAIM. 

The  Suit  in  Support  of  an  Adverse  Is  Ordinarily  at  Law  by 

ejectment  and  such  suit  is  certainly  contemplated  in  the  statute 
(page  646)  by  the  use  of  the  clause  "the  jury  shall  so  find." 
Such  is  undoubtedly  the  form  of  action  where  the  plaintiff,  as 
is  usually  the  case,  is  out  of  possession.  But  where  the  plaintiff 
is  already  in  possession  he  may  proceed  in  equity  by  bill  to 
quiet  title.  This  view  making  the  form  of  action  depend  upon 
whether  plaintiff  is  in  or  out  of  possession  is  that  which  is 
clearly  expressed  by  the  final  authority  in  such  cases. — Perego 
v.  Dodge,  163  U.  S.  165,  16  Sup.  Ct.  Rep.  971,  41  L.  Ed.  113, 
18  M.  R.  364. 

There  had  been  decisions  holding  in  general  terms  that  eject- 
ment was  the  proper  remedy. — Becker  v.  Pugli,  9  Colo.  589,  13 
P.  906,  15  M.  R.  304;  Manning  v.  Strehlow,  11  Colo.  451,  18  P. 
625;  Burke  v.  McDonald,  2  Ida.  310  (339),  13  P.  351;  Ware  v. 
White,  81  Ark.  220,  108  S.  W.  831 ;  and  others  asserting  it  to 
be  an,  equitable  action. — Doe  v.  Waterloo  Co.,  43  F.  219 ;  Sho- 
shone  Co.  v.  Butter,  87  F.  801,  31  C.  C.  A.  223,  19  M.  R.  356 ; 
Providence  Co.  v.  Burke,  6  Ariz.  323,  57  P.  641,  19  M.  R.  625 ; 
McFadden  v.  Mt.  View  Co.,  97  F.  670,  38  C.  C.  A.  354;  Butte 
Co.  v.  Barker,  35  Mont.  327,  89  P.  302,  90  P.  177;  but  the 
Perego  case  states  the  obvious  test  of  possession  as  determining 
the  form  of  action. 

Where  the  adverse  claimant's  title  was  purely  legal  his  bill 
in  equity  was  dismissed. — Johnson  v.  Munday,  104  F.  594,  44 
C.  C.  A.  64,  21  M.  R.  96. 

If  neither  party  is  in  actual  exclusive  possession  or  if  the 
facts  render  the  point  doubtful  the  claimant  can  treat  the 
application  as  an  ouster  and  proceed  at  law. — Becker  v.  Pugh, 
15  M.  R.  304,  9  Colo.  589, 13  P.  906.  See  page  437. 

In  agreement  with  the  Perego  case  and  with  these  views  are 
the  cases  of  Durgan  v.  Redding,  103  F.  914 ;  Young  v.  Gold* 
steen,  97  F.  303 ;  Book  v.  Justice  Co.,  58  F.  827. 

The  cases  which  hold  that  it  is  of  itself  and  without  regard 
to  possession  an  equitable  action  lose  sight  of  the  fact  that  the 
adverse  and  the  suit  are  independent  proceedings.  The  adverse 


ADVERSE  CLAIM.  013 

being  filed  in  the  land  office,  the  government,  the  trustee  of  the 
title — directs  the  contestants  to  adjudicate  their  controvery  in 
a  "Court  of  competent  jurisdiction."  It  then  allows  the 
winning  party  to  report  his  obedience  to  the  direction, — his 
success  in  the  suit — and  the  patent  application  resumes  its 
progress.  There  is  no  connection  between  the  two  procedures 
such  as  to  bring  the  cause  within  any  one  of  the  limited  sched- 
ule of  the  subjects  of  equitable  jurisdiction.  But  if  at  the 
proper  time  for  bringing  suit  the  plaintiff  be  in  possession  he 
has  the  right  to  bring  suit  in  equity  to  quiet  title:  the  same 
suit  which  he  could  maintain  if  there  were  no  controversy 
pending  in  the  land  office. 

Parties. 

The  plaintiff  is,  of  course,  the  adverse  claimant  and  the 
defendant  the  applicant,  but  where  the  contestants  after 
adverse  filed  conveyed 'to  one  of  their  number  it  has  been  held 
that  the  suit  may  be  brought  in  his  name  alone. — Willitt  v. 
Baker,  133  F.  937. 

The  applicant  should  be  made  a  defendant,  although  he  has 
sold  his  interest  before  suit  brought. — Blackburn  v.  Portland 
Co.,  175  U.  S.  571,  20  Sup.  Ct.  Rep.  222,  44  L.  Ed.  276,  20  M.  E. 
358.  The  Court  recognizes  the  relation  of  the  suit  to  the  land 
office  proceedings  and  looks  to  an  adjudication  of  title  not  to 
a  technical  question  of  proper  parties. — Wolverton  v.  Nichols, 
119  U.  S.  485,  7  Sup.  Ct.  Rep.  289,  30  L.  Ed.  474, 15  M.  R.  309. 

Complaint. 

The  complaint  should,  of  course,  describe  the  area  in  con- 
flict following  the  lines  of  plat  "B"  in  the  adverse.  If  it 
declare  for  the  whole  claim  it  would  necessitate  a  disclaimer 
as  to  parcel  of  the  premises.  But  to  the  holding  that  the  com- 
plaint is  so  intimately  associated  with  the  adverse  claim  that 
a  failure  to  describe  the  exact  area  in  conflict  would  render  it 
fatally  defective  we  can  not  assent,  though  such  has  been  the 
ruling  in  two  cases. — Cronin  v.  Bear  Creek  Co.,  3  Ida.  614,  32 
P.  204,  17  M.  R.  548  j  Smith  v.  Imperial  Co.,  11  Ariz.  193,  89 
P.  510. 


614  ADVERSE  CLAIM. 

KK.     FORM  OF  COMPLAINT. 

STATE  OF  COLORADO,    ) gg 
County  of  Gilpin.      j 

In  the  District  Court  of  said  County. 
Charles  W.  Bishop,  Plaintiff, 

v. 
Carroll  Carter,  Defendant. 

The  plaintiff  complains  and  alleges: 

1.  That  on  to-wit:   The  1st  day  of  January,  A.  D.  1897,  and  ever 
since  hitherto  he  was,  and  is,  the  owner  and  in  actual  occupation  of  the 
Elephant  lode  mining  claim,  1500  feet  in  length  by  150  feet  in  width, 
situate  in  Wisconsin  mining  district,  County  and  State  aforesaid. 

2.  That  the  plaintiff  is,  and  at  all  times  mentioned  in  this  complaint 
hath  been,  a  citizen  of  the  United  States,   (or) 

2.  That  at  and  before  the  date  last  aforesaid  the  plaintiff  had  de- 
clared his  intention  to  become  a  citizen  of  the  United  States  before  a 
court  of  record,  to-wit:    The  Court  of  Commtm  Pleas  of  the  County  of 
Allegheny,  Commonwealth  of  Pennsylvania. 

3.  That  he  has  and  claims  the  legal  right  to  occupy  and  possess  said 
premises  and  is  entitled  to  the  possession  thereof  by  virtue  of  full  com- 
pliance with  the  local  laws  and  rules  of  miners  in  said  mining  district, 
the  laws  of  the  United  States,  and  of  said  State  of  Colorado,  by  pre- 
emption (and  purchase)  and  by  actual  prior  possession,  as  a  lode  mining 
claim,  located  on  the  public  domain  of  the  United  States. — See  Code, 
Sec.  286. 

4.  That  on,  to-wit:  The  3rd  day  of  January,  A.  D.  1916,  the  defend- 
ant wrongfully  entered  upon  parcel  of  said  claim,  to-wit :  All  that  part  of 
said  claim  which  is  intersected  by  the  exterior  lines  of  the  Busy  Bee  lode 
mining  claim,  Survey  Lot  No.  21000  A,  as  shown  by  plat  marked  Exhibit 
B,  filed  on  the  3rd  day  of  June,  A.  D.  1916,  in  the  land  office  of  the 
United  States,  at  Denver,  in  the  said  State,  with  the  adverse  claim  of  the 
plaintiff  against  the  entry  of  said  Busy  Bee  lode  for  patent,  such  ground 
so  intersected  being  described  as  follows:    (here  interference  should  be 
described  by  metes  and  bounds)  and  that  defendant  hath  every  since 
hitherto    wrongfully    withheld    the    possession    of    said    parcel    of    said 
Elephant  lode  mining  claim  from  the  plaintiff  to  his  damage  in  the  sum 
of  one  hundred  dollars. 

5.  That  said  adverse  claim  was  filed  in  said  Land  Office  within  the 
•  period  of  sixty  days  of  publication  of  the  notice  of  application  for  patent 

on  said  Busy  Bee  lode  and  this  suit  is  brought  before  the  expiration  of 
the  period  of  thirty  days  after  the  filing  of  said  adverse  claim. 


ADVERSE  CLAIM.  615 

6.  That  this  suit  is  brought  in  support  of  said  adverse  claim,  and 
that  plaintiff  necessarily  disbursed,  expended  and  paid  out  the  sum  of 
twenty-five  dollars  for  plats,  abstracts  and  copies  of  papers  filed  in  said 
land  office  with  his  said  adverse  claim,  and  also  a  reasonable  counsel  fee, 
to-wit :  Fifty  dollars,  for  the  expense  of  preparing  his  said  adverse  claim. 

Wherefore  plaintiff  prays  judgment  against  the  defendant: 

1.  For  the  recovery  of  possession  of  said  parcel  of  said  Elephant 
lode  mining  claim. 

2.  For  the  sum  of  one  hundred  dollars  damages. 

3.  For  the  sum  of  seventy-five  dollars  expended  in  support  of  said 
adverse  claim. 

4.  For  costs  of  suit. 

A.  R.  MORBISON, 
Attorney  for  Plaintiff. 

Add  verification  if  desired;  but  in  actions  of  ejectment, 
trespass,  etc.,  the  practice  of  verifying  the  pleadings  ought  to 
be  discouraged. 

The  above  form  was  expressly  approved  in  Jackson  v. 
McFall,  36  Colo.  119,  85  P.  638. 

Averment  of  Citizenship. 

It  is  the  practice  to  aver  the  citizenship  of  the  parties  in 
their  respective  pleadings.  The  forms  above  given  contain 
such  allegation,  and  if  issue  is  taken  on  it  the  fact  must  be 
proved.— Strickley  v.  HUl,  22  Utah  257,  83  Am.  St.  Rep.  786, 
20  M.  R.  722,  62  P.  894.  See  Citations,  p.  390. 

The  citizenship  of  the  parties  is  a  material  issue  in  an  adverse 
claim  suit.— Matlock  v.  Stone,  77  Ark.  195,  91  S.  W.  553. 

A  failure  to  aver  citizenship  in  the  pleadings  where  it  was 
in  fact  proved  at  the  trial  was  held  immaterial  in  Lozar  v. 
Neill,  37  Mont.  287,  96  P.  343. 

As  to  complaints  omitting  the  allegations  of  paragraph  5  in 
the  form  above,  see  p.  438. 

Costs. 

Paragraph  6  of  the  above  form  is  based  on  R.  S.  Colo.  1061. 
The  costs  in  such  section  strwtly  construed,  could  not  be  made 


616  ADVERSE  CLAIM, 

to  include  more  than  the  expense  of  abstract,  plat  and  attor- 
ney's fee.  It  is  customary  between  counsel  to  concede  without 
proofs  that  $75  has  been  paid  under  this  allegation. 

Land  office  costs  are  not  taxable. — Golden  Co.  v.  National 
Co.,  28  Ida.  290, 154  P.  207. 

Complaint  Detailing  History  of  Location. 

There  is  another  style  of  complaint  which  sets  forth  chron- 
ologically the  fact  of  discovery,  of  sinking  the  shaft,  its  depth, 
and  what  it  disclosed;  the  placing  of  the  location  stake,  the 
marking  of  the  claim,  and  the  record ;  following  the  language 
of  the  statute  concerning  location,  etc.  But  many  claims  are 
sufficiently  valid  to  maintain  ejectment  without  a  strict  loca- 
tion, or  the  defendant  may  be  in  position  where  he  is  estopped 
from  attacking  weak  points  in  the  plaintiff's  case.  In  any 
event  such  recitals  lead  to  cumbersome  pleadings  and  to  imma- 
terial issues,  and  are  not  the  ultimate  facts  required  to  be 
stated  in  code  pleading. 

General  allegations  of  title  are  sufficient. — Rough  v.  Sim- 
mons, 65  Cal.  227,  3  P.  804,  15  M.  R.  298.  But  the  complaint 
sustained  in  that  case  is  the  extreme  of  loose  pleading. 

Relation  of  the  Suit  to  the  Application. 

It  has,  as  we  believe,  been  rightly  held  that  an  ordinary  com- 
plaint in  ejectment  making  no  reference  to  the  land  office 
proceedings  will  support  the  adverse  claim. — Deeney  v.  Min- 
eral Creek  Co.,  11  N.  M.  279,  67  P.  724,  22  M.  R.  47;  Altoona 
Co.  v.  Integral  Co.,  114  Cal.  100,  45  P.  1047;  Upton  v.  Santa 
Rita  Co.,  14  N.  M.  96,  89  P.  275. 

The  suit  being  determined  and  certified  copy  of  its  judgment 
roll  being  filed  in  the  land  office  showing  that  it  was  between 
the  same  parties,  that  it  determined  the  right  of  possession  to 
the  same  property  and  was  brought  at  a  date  found  to  be 
within  30  days  of  the  filing  of  the  adverse — what  more  is  nec- 
essary to  connect  the  two  proceedings  and  to  show  that  the  suit 
was  the  same  suit  intended  by  the  terms  of  R.  S.  Sec.  2326  ? 


ADVERSE  CLAIM.  617 

But  departing  from  this  obviously  plain  view  of  the  proceed- 
ing the  Courts  of  the  various  States  have  scattered  widely  on 
the  point  as  to  whether  at  all  or  to  what  extent  the  pleadings 
should  recite  their  relation  to  and  connection  with  the  defend- 
ant's  application  and  the  plaintiff's  adverse.  The  various 
holdings  are  concisely  digested  in  2  Lindley,  Sec.  754. 

The  forms  above  given  are  a  concession  to  the  contention 
that  the  proceedings  should  be  tied  together  by  formal  refer- 
ence to  the  land  office  filing  and  fully  meet  the  requirements  of 
those  Courts  which  hold  such  averments  essential. 

But  while  conceding  as  above  to  what  is  demanded  by  some 
of  these  decisions,  and  'conceding  as  well  that  it  is  the  better 
practice,  we  do  not  concede  that  a  complaint  ought  to  be  held 
bad  if  they  were  all  omitted. 

In  Mattingly  v.  Lewisohn,  13  Mont.  508,  35  P.  ill,  17  M.  R. 
693,  Montana  held  that  the  averment  of  the  filing  of  the 
adverse  and  bringing  of  the  suit  in  due  time  were  material 
averments.  This  ruling  was  reaffirmed  in  Thornton  v.  Kauf- 
man, 35  Mont.  181,  88  P.  796.  But  it  may  be  inferred  by 
implication  from  dates  in  the  complaint. — Helbert  v.  Tat  em, 
34  Mont.  3,  85  P.  733. 

In  Cronin  v.  Bear  Creek  Co.,  3  Ida.  614,  32  P.  204, 17  M.  R. 
548,  Idaho  held  that  although  these  dates  were  conceded  by 
stipulation  their  absence  from  the  complaint  rendered  it  so 
defective  that  it  would  not  support  a  judgment.  Thus  the 
patent  justice  of  the  case  was  sacrificed  to  support  a  techni- 
cality in  code  pleading. 

But  these  decisions  are  against  the  current  of  authority. — 
Pennsylvania  Co.  v.  Bales,  18  Colo.  App.  108,  70  P.  444,  22 
M.  R.  436:  Rawlings  v.  Casey,  19  Colo.  App.  152,  73  P.  1090; 
Providence  Co.  v.  Marks,  7  Ariz.  74,  60  P.  938;  Quigley  v. 
Gillett,  101  Cal.  462,  35  P.  1040,  18  M.  R.  68. 

In  Arizona  it  has  been  held  that  the  suit  is  "Neither  an 
action  at  law,  nor,  strictly  speaking,  one  in  equity";  that  the 
plaintiff  must  allege  and  prove  and  practically  duplicate  all 
that  is  required  in  the  land  office;  and  a  complaint  was  held 
defective  beyond  amendment  because  it  did  not  aver  "that 


618  ADVERSE  CLAIM. 

the  ground  in  controversy  was  mineral  land  subject  to  loca« 
tion.  "—Keppler  v.  Becker,  9  Ariz.  234,  80  P.  334. 

We  can  not  see  value  received  to  any  party  to  the  contest 
nor  any  reason  in  practice  or  on  principle  to  justify  these 
refinements  in  pleading. 

A  suit  supporting  an  adverse  claim  is  essentially  a  law 
action,  but  as  the  parties  below  treated  it  as  an  equity  case 
the  decree  is  not  reversible  on  that  ground. — Ware  v.  White,  81 
Ark.  220, 108  S.  W.  831. 

The  words  "jury  shall  so  find"  in  the  act  referring  to 
adverse  suits  where  neither  party  shows  a  valid  location,  seem 
to  us  a  binding  statutory  construction  to  the  point  that  it  is  or 
may  be  a  case  at  law;  for  jury  verdicts,  except  as  advisory 
verdicts,  are  unknown  to  equity  practice. 

Amendment  of  Complaint. 

Contrary  to^the  ruling  on  the  same  point  in  the  Keppler  case 
above  cited,  Deeney  v.  Mineral  Greek  Co.,  11  N.  M.  279,  67  P. 
724,  22  M.  R.  47,  and  Woody  v.  Hinds,  30  Mont.  189,  76  P.  1, 
both  hold  that  the  complaint  may  be  amended  after  the  30-day 

period  has  expired. 

\ 

LL.     ANSWER. 

STATE  OP  COLORADO,   lgg^ 
County  of  Gilpin.      f 

In  the  District  Court  of  said  County. 
Charles  W.  Bishop,  Plaintiff, 

v. 
Carroll  Carter,  Defendant. 

Defendant  answering  the  complaint  saygi 
For  a  first  defense: 

1.  He  denies  that  on  the  date  charged  in  complaint  or  at  any  time 
the  plaintiff  was  or  is  the  owner  or  was  in  the  occupation,  actual  or 
otherwise,  of  the  Elephant  lode  mining  claim  described  in  said  complaint. 

2.  He  admits  (or  denies)  that  the  plaintiff  is  a  citizen  of  the  United 
States. 

3.  Defendant  denies  that  plaintiff  has  or  claims  the  legal  right  to 
occupy  and  possess  said  premises  or  is  entitled  to  the  possession  thereof, 


ADVERSE  CLAIM.  619 

and  denies  that  he  hath  complied  with  the  local  laws  or  rules  of  miners 
in  said  Wisconsin  mining  district,  the  laws  of  the  United  States,  or  of 
said  State  of  Colorado,  in  the  pre-emption,  discovery,  or  location  of  said 
so-called  Elephant  lode  mining  claim. 

4.  Defendant  denies  that  at  the  time  charged  in  paragraph  four  of 
complaint,  or  at  any  time,  the  defendant  wrongfully  entered  upon  the 
parcel  of  said  claim  described  in  said  paragraph  or  any  part  thereof,  or 
that  he  hath  ever  since,  hitherto,  or  at  any  time,  wrongfully  withheld 
possession  of  said  premises  from  the  plaintiff  and  denies  that  the  plaintiff 
is  damaged  in  the  sum  of  $100  or  in  any  sum,  or  at  all. 

5.  Defendant  admits  the  allegations  of  paragraphs  five  and  six  of 
the  complaint. 

For  a  second  defense,  defendant  saya: 

1.  That  he  is  a  citizen  of  the  United  States,  and  that  ever  since, 
to-wit:    The  23rd  day  of  June,  1894,  he  was  and  is  the  owner  and  in 
actual   occupation   of   the   Busy  Bee   lode  mining   claim,    1500    feet   in 
length  by  150  feet  in  width,  situate  in  said  Wisconsin  mining  district, 
County  and  State  aforesaid. 

2.  That  he  has  and  claims  the  legal  right  to  occupy  and  possess  said 
Busy  Bee  lode  mining  claim,  and  is  entitled  to  the  possession  thereof  by 
virtue  of  full  compliance  with  the  local  laws  and  rules  of  miners  in  said 
mining  district,  the  laws  of  the  United  States  and  of  said  State  of  Colo- 
rado, by  pre-emption  (and  purchase)  and  by  actual  prior  possession  as  a 
lode  mining  claim  located  on  the  public  mineral  domain  of  the  United 
States. 

3.  And  that  the  premises  sued  for  in  said  complaint  are  parcel  of 
said  Busy  Bee  lode  mining  claim,  the  property  of  this  defendant. 

DEWEY  C.  BAILEY,  JB., 

Attorney  for  Defendant. 

A  Replication  Must  Be  Filed  to  Such  Second  Defense  or  the 

defendant  will  be  entitled  to  judgment. — Neivman  v.  Neivton, 
14  F.  634,  4  McCrary  293.  But  if  parties  go  to  trial  on  the 
merits,  defendant  will  be  assumed  to  have  waived  this  right. — 
Quimby  v.  Boyd,  8  Colo.  194,  6  P.  462. 

And  in  "Wyoming,  in  Iba  v.  Central  Ass'n,  5  "Wyo.  355,  40  P. 
527,  42  P.  20,  the  Court  took  the  very  tenable  position  that 
the  second  defense  was  only  in  effect  a  traverse  of  the  com- 
plaint and  did  not  require  any  replication. 


620  ADVERSE  CLAIM. 

Plea  of  Abandonment  and  Relocation. 

In  Bryan  v.  McCaig,  10  Colo.  309,  15  P.  413,  the  Supreme 
Court  of  Colorado  held  that  an  issue  as  to  annual  labor  was 
made  by  general  traverse  of  plaintiff's  title  in  an  adverse  claim 
suit.  Cited  and  followed  in  Duncan  v.  Eagle  Rock  Co.,  48 
Colo.  569,  587,  139  Am.  St.  Rep.  288,  111  P.  588.  And  to  like 
effect,  in  Nevada,  Steel  v.  Gold  Co.,  18  Nev.  80,  15  M.  R.  292, 
1  P.  448,  holds  that  under  the  general  allegation  each  party 
parades  the  validity  of  his  own  title  on  whatever  grounds 
established. 

If  when  a  claim  is  abandoned  it- becomes,  as  it  does,  a  part 
of  the  public  domain  (Migeon  v.  Montana  Co.,  11  F.  249,  23 
C.  C.  A.  156, 18  M.  R.  446)  :  Why  is  not  an  allegation,  that  the 
defendant  at  a  date  later  than  the  abandonment  entered  on  the 
public  domain  and  discovered  and  located  his  claim,  a  sufficient 
averment  of  entry  upon  unoccupied  -ground  ? 

In  Morenhaut  v.  Wilson,  52  Cal.  263, 1  M.  R.  53,  it  was  ruled 
that  while  abandonment  could  be  proved  under  the  general 
issue,  forfeiture  must  be  specially  pleaded.  The  distinction 
seems  of  no  particular  value,  for  abandonment  by  one  party 
unless  followed  by  the  entry  of  the  other  to  advance  the  aban- 
donment to  forfeiture  can  not  amount  to  a  material  issue. 

Another  line  of  reasoning  is  that  forfeitures  are  odious ;  the 
party  alleging  forfeiture  must  prove  it  strictly ;  the  presump- 
tions are  all  against  it,  and,  being  a  special  incident  not  neces- 
sarily associated  with  the  party's  title,  it  should  be  alleged  in 
the  complaint  or  answer;  that  is,  should  be  specially  pleaded. — 
Wulf  v.  Manuel,  9  Mont.  276,  279,  286,  23  P.  723 :  Mattingly  v. 
Leu'isohn,  13  Mont.  508,  35  P.  Ill,  17  M.  R.  693. 

This  conflict  of  authority  is  referred  to  in  Johnson  v.  Young, 
18  Colo.  625,  629,  34  P.  173. 

But  the  later  case  of  Duncan  v.  Eagle  Rock  Co.,  48  Colo.  569, 
587,  139  Am.  St.  Rep.  288,  111  P.  588,  expressly  decides  that 
forfeiture  need  not  be  specially  pleaded  in  an  adverse  claim 
suit.  Also,  Merchants  Bank  v.  McKeown,  60  Or.  325,  119 
P.  334. 


ADVERSE  CLAIM.  621 

Abandonment  is  wholly  immaterial  if  no  issue  (directly  or 
indirectly)  has  been  made  upon  it. — Mattingly  v.  Lewisohn, 
supra;  Coleman  v.  Davis,  13  Colo.  98,  21  P.  1018. 

And  a  party  who  makes  a  relocation  of  an  abandoned  claim 
as  such  can  not  attack  defects  in  its  original  location  notice. — 
Tosemite  Co.  v.  Emerson,  208  U.  S.  25,  28  Sup.  Ct.  Rep.  196, 
52  L.  Ed.  374. 

In  a  plea  of  forfeiture  "labor"  and  "improvements"  are 
not  synonymous  terms  and  the  non-doing  of  one  and  the  non- 
performance  of  the  other  must  be  both  averred. — Power  v.  Sla., 
24  Mont.  243,  61  P.  468,  20  M.  R.  659. 

The  Court  will  not  allow  an  amendment  to  show  that 
defendant  failed  to  do  his  work  for  a  certain  year,  the  plain- 
tiff not  having  made  any  relocation  after  the  failure. — Nichols 
v.  Williams,  38  Mont.  552,  100  P.  969. 

Adverse  Against  Void  Claim,  Relocation. 

The  Quaking  Asp  being  a  prior  subsisting  claim,  the  Dog 
Nest  was  located  over  it,  its  discovery  shaft  being  within  the 
lines  of  the  prior  claim  and  the  location  therefore  void.  After- 
wards the  prior  claim  (as  was  alleged)  failed  to  do  its  annual 
labor  and  the  Dog  Nest  filed  a  relocation  certificate,  applied  for 
patent  and  was  adversed  by  the  Quaking  Asp.  Held,  that  the 
relocation  statute  was  for  the  benefit  of  defective,  not  void, 
locations  and  that  the  relocation  certificate  was  a  nullity. — 
Sullivan  v.  Sharp,  33  Colo.  346,  80  P.  1054. 

The  opinion  everywhere  has  always  been  that  a  relocation  r 
perfected  the  original  location  if  in  any  respect  defective,  or,  if  • 
void,  the  incident  which  rendered  it  void  being  at  the  time  of 
relocation  gone,  it  operated  as  an  original  location.   The  case 
of  Strepey  v.  Stark,  1  Colo.  620,  5  P.  Ill,  17  M.  R.  28,  so 
decides  in  terms.  The  doctrine  that  a  relocation  could  not  cure 
a  location  originally  void  is  absolutely  novel  and  contrary  to 
all  the  cases  which  have  approached  the  point. — Beals  v.  Cone, 
27  Colo.  473,  83  Am.  St.  Rep.  473,  62  P.  948,  20  M.  R.  591; 
Tonopah  Co.  v.  Tonopah  Co.,  125  F.  389,  390. 


622  ADVERSE  CLAIM. 

The   Verdict   Should  Show   That   the   Winning  Party  Is 

entitled  to  possession  by  virtue  of  making  a  valid  location  of 
the  claim.— Burke  v.  McDonald,  2  Ida.  646,  679,  33  P.  49,  17 
M.  R.  325.  .  It  should,  of  course,  comply  with  all  mandatory 
requirements  of  the  code  of  the  State  where  tried.  But  as  it  has 
been  very  rightfully  held  that  neither  party  is  required  in  the 
adverse  suit  to  show  that  he  has  done  everything  entitling  to 
patent  (Doe  v.  Waterloo  Co.,  70  F.  456,  17  C.  C.  A.  190,  18 
M.  R.  265),  and  the  National  Supreme  Court  upholds  a  gen- 
eral verdict  for  either  party  (Bennett  v.  Harkrader,  158  U.  S. 
441,  15  Sup.  Ct.  Rep.  863,  39  L.  Ed.  1046,  18  M.  R.  224),  it 
would  seem  that  such  strictness  as  was  insisted  on  in  M.cGinnis 
v.  Egbert,  15  M.  R.  329,  8  Colo.  41,  5  P.  652,  and  Manning  v. 
Strehlow,  11  Colo.  451, 18  P.  625,  ought  not  now  to  be  required. 
A  general  verdict  of  guilty  in  ejectment  is  sufficient. — Upton 
v.  Santa  Eita  Co.,  14  N.  M.  96,  89  P.  275. 

MM.     VERDICT  FOE  PLAINTIFF. 

We,  the  jury,  find  the  issues  in  favor  of  the  plaintiff,  and  that  he  is 
the  owner  by  discovery  (or  purchase)  and  location  and  has  established 
his  right  to  the  possession  and  occupancy  of  the  premises  described  and 
claimed  in  the  complaint,  to-wit:  All  that  part  of  ihe  Elephant  lode 
mining  claim  covered  ~by  the  survey  of  the  Busy  Bee  lode  mining  claim, 
Survey  Lot  No.  21000  A;  and  that  he,  the  plaintiff,  is  such  owner  and 
entitled  to  recover  said  premises  of  and  from  the  defendant  by  virtue  of 
full  compliance  with  the  statutes  of  the  United  States  and  of  the  State 
of  Colorado  in  the  discovery  and  location  of  said  Elephant  lode  mining 
claim.  And  that  he  expended  and  should  recover  from  the  defendant 
the  sum  of  seventy-five  dollars  expenses  and  counsel  fee  as  claimed  in  his 
complaint. 

NN.     VERDICT  FOE  DEFENDANT. 

We,  the  jury,  find  the  issues  in  favor  of  the  defendant,  and  that  he  is 
the  owner  by  discovery  (or  purchase)  and  location  and  has  established  his 
right  to  the  possession  and  occupancy  of  the  premises  described  and 
claimed  in  the  answer,  to-wit:  The  Busy  Bee  lode  mining  claim,  Survey 
Lot  No.  21000  A,  and  that  he,  the  defendant,  is  such  owner  by  virtue  of 
full  compliance  with  the  statutes  of  the  United  States  and  of  the  State 
of  Colorado  in  the  discovery  and  location  of  said  Busy  Bee  lode  mining 
claim. 


ADVERSE  CLAIM.  623 

The  above  forms  comply  with  Section  288  of  the  Code  and 
with  other  points  peculiar  to  an  adverse  suit,  as  suggested  in 
said  decisions  of  the  Supreme  Court  of  Colorado. 

Ruling's  in  Ejectment  Supporting  Adverse. 

Declarations  of  a  locator  may  be  given  in  evidence  to  dispute 
his  title. — Harrington  v.  Chambers,  supra;  Muldoon  v.  Brown, 
21  Utah  121,  59  P.  720,  20  M.  R.  269 ;  Morgan  v.  Myers,  159 
Cal.  187,  113  P.  153.  But  not  admissions  made  after  he  has 
parted  with  his  title. — McGinnis  v.  Egbert,  15  M.  R.  329,  8 
Colo.  41,  5  P.  652.  And  in  Willison  v.  Ringwood,  194  F.  550, 
111  C.  C.  A.  401,  they  were  excluded  on  the  further  ground 
that  the  witness  was  within  the  jurisdiction  of  the  Court  and 
should  have  been  called  as  a  witness. 

A  post  marked  as  a  center  post  may  be  shown  in  adverse 
suit  to  have  been  intended  for  a  corner  post. — Sharkey  v. 
Candiani,  48  Or.  112,  7  L.  R.  A.  (N.  S.)  791,  85  P.  219. 

An  adverse  claimant  may  show  that  the  location  adversed 
is  invalid  by  reason  of  the  existence  of  a  third  claim  in  which 
neither  party  has  any  interest. — Harrington  v.  Chambers,  3 
Utah  94,  1  P.  362.  Affirmed,  Chambers  v.  Harrington,  111 
U.  S.  350,  4  Sup.  Ct.  Rep.  428,  28  L.  Ed.  452,  but  with  only 
a  general  reference  to  this  point  in  the  last  paragraph.  To  the 
contrary  seems  Strepey  v.  Stark,  1  Colo.  614,  5  P.  Ill,  17 
M.  R.  28.  See  EJECTMENT,  p.  436. 

Diligent  Prosecution. 

The  Land  Office  can  not  adjudicate  npon  the  question 
whether  the  suit  is  being  prosecuted  with  due  diligence. — 22 
L.  D.  16 ;  Richmond  Co.  v.  Rose,  114  U.  S.  576,  5  Sup.  Ct.  Rep. 
1055,  29  L.  Ed.  273 ;  Rose  v.  Richmond  Co.,  17  Nev.  25,  27  P. 
1105.  In  Mars  v.  Oro  Fino  Co.,  1  S.  D.  606,  65  N.  W.  19,  the 
suit  was  dismissed  for  delay  in  securing  service. 

Dismissal  and  Reinstatement. 

Jurisdiction  once  attached  remains  and  where  default  was 
had,  but  the  cause  reinstated,  the  adverse  holds,  notwith- 


624  ADVERSE  CLAIM. 

standing  the  certificate  of  no  suit  pending  had  been  filed  dur- 
ing the  interval.— 1  L.  D.  542;  Rev.  Ed.  539.  Nor  will  a 
receiver's  receipt  obtained  in  such  interval  be  allowed  in  evi- 
dence.—McEvoy  v.  Hyman,  25  F.  539, 15  M.  R.  300  j  Deemy  v. 
Mineral  Co.,  11  N.  M.  279,  67  P.  724,  22  M.  R.  47. 

Waiver — Withdrawal  or  Failure  to  Support. 

An  adverse  claim  may  be  withdrawn  either  before  or  after 
bringing  the  suit,  thereby  waiving  all  rights  claimed. — 4  L.  D. 
117 ;  29  L.  D.  89.  Or  by  voluntarily  dismissing  the  suit. — 4 
L.  D.  273.  And  when  suit  is  dismissed  certificate  to  that  effect 
must  be  filed.  Upon  failure  to  issue  summons  within  the  period 
required  by  the  code,  the  complaint  may  be  dismissed. — Steves 
v.  Carson,  21  Colo.  280,  40  P.  569,  and  a  second  suit  can  not 
afterwards  be  brought.— Steves  v.  Carson,  42  F.  821,  16 
M.  R.  12.  See  Rules  86,  87. 

The  Court  Trying  the  Adverse  Suit  May  Give  Full  Relief 

and  if  necessary  restore  the  successful  party  to  possession. — 
Silver  City  Co.  v.  Lowry,  19  Utah  334,  57  P.  11,  20  M.  R.  55. 

Defects  in  the  Adverse  Claim  Are  Not  Material  to  the  Issue 

at  law  between  the  parties,  and  are  for  departmental  con- 
sideration only. — Rose  v.  Richmond  Co.,  17  Nev.  25,  27  P. 
1105;  Quigley  v.  Gillett,  101  Gal.  462,  35  P.  1040,  18  M.  R.  68. 
The  practice  after  suit  commenced  is  under  State  law  and 
the  proceedings  in  the  Land  Office  are  immaterial  to  the 
trial.— Bernard  v.  Parmelee,  6  Gal.  App.  537,  92  P.  658. 

Title  in  Neither  Party. 

That  if,  in  any  action  brought  pursuant  to  section  twenty-three  hun- 
dred and  twenty-six  of  the  Eevised  Statutes,  title  to  the  ground  in  contro- 
versy shall  not  be  established  by  either  party,  the  jury  shall  so  find,  and 
judgment  shall  be  entered  according  to  the  verdict.  In  such  case  costs 
shall  not  be  allowed  to  either  party,  and  the  claimant  shall  not  proceed 
in  the  land  office  or  be  entitled  to  a  patent  for  the  ground  in  controversy 
until  he  shall  have  perfected  his  title. — A.  C.  March  3,  1881 


ADVERSE  CLAIM.  625 

The  rulings  under  the  above  Act  are,  that  each  party  is  prac- 
tically a  plaintiff  and  must  show  his  title. — Slothower  v. 
Hunter,  15  Wyo.  189,  88  P.  36 ;  but  that  if  neither  shows  title 
the  verdict  must  be  special — which  is  an  assertion  that  the  title 
remains  in  the  United  States,  so  far,  at  least,  as  the  litigating 
parties  are  concerned. — Jackson  v.  Roby,  109  U.  S.  440,  3  Sup. 
Ct.  Rep.  301,  27  L.  Ed.  990;  Rosenthal  v.  Ives,  15  M.  R.  324, 
2  Ida.  244,  265, 12  P.  904.  See  p.  622. 

The  effect  of  the  Act  is  to  prevent  a  recovery  upon  possession 
alone  in  ejectment  supporting  adverse. — Becker  v.  Pugh,  9 
Colo.  589,  13  P.  906,  15  M.  R.  304;  Upton  v.  Santa  Rita  Co., 
14  N.  M.  96,  88  P.  275. 

In  Ware  v.  White,  the  opinion,  entirely  overlooking  the 
terms  of  the  statute  referring  to  cases  where  titles  shall  not 
be  established  by  either  party,  says :  ' '  The  question  of  appel- 
lant's title  is  not  for  adjudication,  but  appellee's." — 81  Ark. 
220,  228,  108  S.  W.  831. 

After  judgment  of  title  in  neither  party  the  Land  Office 
will  not  allow  the  application  to  be  perfected. — Newman  v. 
Barnes,  23  L.  D.  257. 

Non-Suit— Defendant's  Proof  of  Title. 

It  has  been  held  that  plaintiff  may  be  non-suited  as  in  an 
ordinary  ejectment.— Kir k  v.  Meldrum,  28  Colo.  453,  459,  65  P. 
633,  21  M.  R.  393;  McWilliams  v.  Winslow,  34  Colo.  341,  82 
P.  538. 

But  if  the  defendant  be  content  with  such  judgment  and 
fail  to  prove  his  own  title  he  runs  the  risk  of  rejection  of  his 
application  in  the  Land  Office.— Kirk  v.  Meldrum,  28  Colo. 
453,  459,  65  P.  633,  21  M.  R.  393. 

Plaintiff  at  this  point  is  out  of  court  and  can  not  demand  a 
jury  view  or  cross  examine  or  otherwise  attack  the  title  of  the 
defendant  who  is  now  proceeding  ex  parte  to  secure  a  judg- 
ment upon  which  to  predicate  his  right  to  a  patent. — Moffat  v. 
Blue  River  Co.,  33  Colo.  142,  80  P.  139;  Connolly  v.  Hughes, 
18  Colo.  App.  372,  71  P.  681;  McMillen  v.  Ferrum  Co.,  32 


626  ADVERSE  CLAIM. 

Colo.  38,  105  Am.  St.  Rep.  64,  74  P.  462 ;  Benton  v.  Hopkins, 
31  Colo.  518,  74  P.  891 ;  Lozar  v.  Neill,  37  Mont.  287,  96  P.  343. 

Entry  of  the  Area  Not  in  Dispute. 

The  department  has  ruled  that  where  the  adverse  covers 
only  parcel  of  the  applying  claim  the  applicant  may  go  to 
entry  and  patent  on  the  area  not  in  controversy  and  without 
waiver  of  any  rights,  defend  against  the  contest  of  the  ad- 
verse claimant  in  the  suit  supporting  adverse. — 2  L.  D.  744, 
22  L.  D.  343. 

Where  the  discovery  shaft  is  upon  the  ground  excluded  in 
favor  of  a  prior  survey,  such  fact  does  not  invalidate  the 
application  where  the  applicant  makes  good  his  adverse  for 
the  excluded  area.— 28  L.  D.  321. 

Proceedings  After  Determination  of  Suit. 

The  Land  Office  requirements  in  such  case  are  stated  in 
Rule  85. 

If  the  judgment  is  in  favor  of  the  defendant  (the  applicant) 
he  files  a  certified  copy  of  the  judgment  roll  (14  L.  D.  308), 
and  is  allowed  to  pay  for  and  enter  the  claim  or  so  much 
thereof  as  has  been  awarded  to  him. 

If  the  judgment  is  in  favor  of  the  adversing  party,  he  files 
certified  copy  of  the  judgment  roll,  and  must  obtain  and  file 
plat  and  survey,  and  file  full  set  of  final  entry  papers ;  in  fact, 
he  must  perform  whatever  is  required  of  an  applicant,  except, 
of  course,  the  posting  and  publication. — 39  L.  D.  353. 

He  must  also  furnish  the  Surveyor  General's  certificate  of 
$500  improvements.— 43  L.  D.  499. 

The  adverse  claimant  in  such  proceeding  enters  only  the 
area  in  conflict  recovered  by  his  judgment. — 27  L.  D.  375.  If 
he  desires  to  patent  his  full  claim  he  must  apply  in  all  respects, 
including  posting  and  publication,  as  an  original  applicant. 

In  such  case  where  he  has  already  begun  his  application 
and  excluded  defendant's  prior  survey,  the  judgment  roll 
shows  him  entitled  to  and  he  is  allowed  to  enter  such  ground, 


ADVERSE  CLAIM.  627 

although  originally  excluded.  If  he  does  not  begin  his  applica- 
tion until  after  he  has  obtained  judgment,  his  application  will 
include  the  area  formerly  in  conflict. 

An  adjudication  of  priority  in  favor  of  part  of  a  lode  seems 
to  be  an  adjudication  of  priority  on  the  questions  arising  in 
any  later  form  of  controversy  between  the  same  lodes. — Last 
Chance  v.  Tyler  Co.,  157  U.  S.  683,  15  Sup.  Ct.  Eep.  733,  39 
L.  Ed.  859,  18  M.  E.  205;  Bunker  Hill  Co.  v.  Empire  Co.,  109 
F.  538,  48  C.  C.  A.  665;  Empire  Co.  v.  Bunker  Hill  Co.,  114 
F.  420,  52  C.  C.  A.  222.  But  see  U.  8.  M.  Co.  v.  Lawson,  as 
cited  ante,  p.  176. 

Compromised  Cases. 

Where  the  suit  is  compromised,  if  there  is  only  one  adverse, 
it  is  more  convenient  to  dismiss  the  suit,  taking  deed  or 
bond  for  deed  from  the  applicant.  In  such  case,  upon  filing 
certificate  of  dismissal,  the  original  survey  goes  to  patent  with- 
out further  complications,  and  the  defendant  can  convey  after 
entry  according  to  the  terms  of  settlement. 

But  in  all  this  class  of  cases,  and  especially  where  there  are 
two  or  more  adverses,  legal  counsel  should  be  taken.  A  set- 
tlement between  the  applicant  and  one  adversor  can  not  bind 
a  second  adversor;  there  may  be  questions  of  retaining  end 
lines,  or  the  discovery  shaft,  or  patent  improvements;  and  it 
may  be  very  material  as  affecting  extralateral  rights  or  on  the 
issue  of  priority,  as  to  which  lode  had  best  take  the  patented 
title. 

Annual  Labor  Pending  the  Trial. 

In  the  matter  of  the  Marburg  Lode,  30  L.  D.  202,  the  depart- 
ment held  that  where  entry  has  been  stayed  by  the  operation 
of  a  protest  or  adverse,  a  delay  not  chargeable  to  the  applicant, 
the  annual  labor  need  not  be  kept  up ;  that  it  will  not  recog- 
nize as  protestant  a  relocation  made  during  such  interval, 
based  on  non-performance  of  labor.  If  such  be  the  correct 
ruling  we  can  not  see  why  it  should  not  also  apply  to  the 
adversing  claim.  Questions  of  procedure  in  the  Land  O.TLe 


628  ADVERSE  CLAIM. 

are  for  that  office  to  decide.  Construction  of  statutes  defining 
conditions  of  the  title  are  for  the  Courts. — Poore  v.  Kaufman, 
44  Mont.  248,  119  P.  785.  The  question  is  so  nearly  one  of  the 
latter  class  that  in  the  absence  of  judicial  decision  to  the  same 
effect  it  is  wholly  unsafe  to  neglect  the  annual  labor  in  reliance 
on  this  case.— See  Rule  55  and  31  L.  D.  69. 

In  Willitt  v.  Baker,  133  F.  937,  the  peculiar  ruling  was  made 
that  both  plaintiff  and  defendant  must  show  that  they  had 
respectively  performed  their  annual  labor  during  the  preced- 
ing year. 

Agreement  to  Not  Adverse. 

When  contesting  claimants  agree  with  the  applicants  to  file 
no  adverse  in  consideration  of  the  applicants  undertaking  to 
convey  the  title  to  the  ground  in  conflict  or  some  other  interest 
in  the  claim  when  entry  is  made  or  patent  issues — such  agree- 
ment should  be  formally  reduced  to  writing  under  signature 
and  seal.  Such  a  contract  is  not  against  public  policy  and 
will  be  enforced. — St.  Louis  Co.  v.  Montana  Co.,  171  U.  S.  650, 
19  Sup.  Ct.  Eep.  61,  43  L.  Ed.  320,  19  M.  R.  575.  In  Dude  v. 
Ford,  138  U.  S.  587,  11  Sup.  Ct.  Rep.  417,  34  L.  Ed.  1091,  a 
case  of  this  kind  but  the  contract  verbal,  it  was  held  to  be 
within  the  Statute  of  Frauds,  i.  e.,  a  contract  void  unless  writ- 
ten, and  the  plaintiff  went  without  relief.  This  decision,  how- 
ever, is  largely  based  on  asserted  defects  in  the  pleadings  and 
can  hardly  be  considered  as  holding  that  so  gross  an  instance 
of  wrong  would  be  in  all  cases  shielded  by  that  statute.  See 
Ponda  v.  Eagle,  as  cited  ante,  p.  171. 


PEOTEST.  629 

PROTEST. 


The  office  of  a  protest  is  to  show  that  no  patent,  such  as 
applied  for,  should  issue — as  where  a  mill  site  patent  is  asked 
for  on  mineral  ground. 

Or  that  it  should  not  issue  to  the  particular  applicant  by 
reason  of  some  defect  of  person,  as  that  the  applicant  is  an 
alien  corporation;  or  for  failure  to  comply  with  the  practice 
of  the  department  in  some  serious  particular.  It  is  not  safe 
to  rely  on  the  presumption  that  the  Land  Office  will  of  its  own 
motion  observe  every  departure  from  its  own  rules. 

The  protestant  can  never  by  his  protest  acquire  title.  He  can 
at  most  defeat  the  efforts  of  the  applicant.  But  if  the  protest 
be  sustained  and  the  applicant  be  compelled  to  begin  de  novo, 
as,  for  instance,  where  the  irregularity  pointed  out  to  the  de- 
partment is  a  short  publication  and  he  is  required  to  go  back 
to  that  point  and  republish — upon  the  new  proceedings  or  the 
republication  the  protestant  has  the  opportunity  to  file  his 
adverse  claim.  Any  stranger  to  the  original  application  would 
have  the  same  right.— 23  L.  D.  395. 

The  fact  that  the  protestant  is  or  claims  to  be  the  real  owner, 
or  to  have  the  better  title,  has  its  place  in  an  adverse  and  is 
not  a  ground  of  protest. — 22  L.  D.  624;  but  it  should  be 
averred  to  give  standing  to  the  protestant. 

The  department  will  entertain  a  protest  as  provided  in  R.  S. 
Sec.  2325,  showing  that  "the  applicant  has  failed  to  comply 
with  the  terms  of  this  chapter ' ' — that  is,  has  made  a  substan- 
tially irregular  step  in  his  location  or  in  his  proceedings  to 
obtain  patent,  as  for  instance  that  he  has  not  disclosed  mineral 
in  his  discovery  shaft  or  elsewhere  within  the  lines  of  the  claim. 
—2  L.  D.  743,  17  Id.  112,  27  Id.  396,  38  Id.  387 ;  or  that  the 
posting  was  defective,  or  that  $500  improvements  were  not 
made. — 16  L.  D.  532,  27  Id.  396 ;  or  any  other  serious  want  of 
conformity  to  the  law  or  to  the  land  office  regulations.— 16 
L.  D.  532. 


630  PEOTEST. 

But  the  fact  that  the  discovery  is  not  upon  the  public  domain 
because  upon  location  of  the  protestant's  of  alleged  earlier  date 
and  other  like  points,  which  if  availed  of  by  adverse  would 
have  shown  better  title  in  the  protestant,  will  not  be  considered 
as  grounds  of  protest.— 22  L.  D.  624,  27  Id.  191,  26  Id.  580, 
30  Id.  67. 

A  protest  by  a  mineral  claimant  against  an  agricultural 
claim  should  state  the  kind  of  mineral  and  the  character  and 
general  situation  of  the  formation. — 37  L.  D.  401. 

Upon  protest  the  land  office  will  cause  an  issue  to  be  made 
upon  the  fact  as  to  whether  there  was  a  valid  discovery. — 38 
L.  D.  387. 

Appeal  by  Protestant. 

A  protestant  claiming  an  interest  is  allowed  the  right  of 
appeal.— 8  L.  D.  122,  16  Id.  532,  29  Id.  230.  But  if  he  has  no 
such  interest  he  is  regarded  as  a  mere  amicus  curiae  and  has 
no  such  right. — 8  L.  D.  439.  A  party  having  no  surface  con- 
flict is  not  such  a  party  in  interest  as  to  have  the  right  to 
appeal.— 6  L.  D.  318,  19  Id.  356.  Nor  has  a  party  whose  only 
claim  is  by  location  made  after  the  protest  was  filed. — 19 
L.  D.  356. 

A  relocation  by  a  protestant  after  entry  does  not  entitle  the 
protestant  to  an  appeal. — 39  L.  D.  574. 

The  Test  Between  Adverse  and  Protest  Is  That  Where  a 

defect  exists  which  is  a  matter  of  public  interest,  and  which 
shows  that  the  applicant  has  not  proceeded  regularly  as  to 
the  United  States  or  as  to  the  entire  body  of  prospectors  who 
are  entitled  to  see  that  all  are  required  to  proceed  under  like 
restrictions,  a  protest  will  be  considered;  but  where  the  point 
is  one  of  interest  only  as  between  the  applicant  and  the 
protestant,  or  as  between  the  applicant  and  a  third  party  who 
is  not  complaining  (21  L.  D.  30,  Mod.  on  Review,  Id.  544), 
the  protestant  can  not  by  his  protest  claim  the  right  to  litigate 
in  this  form  what  he  should  have  contested  by  adverse. 


PKOTEST.  631 

FORM  OF  PROTEST. 

In  the  matter  of  the  Application  of  The  Anaconda  Mining  Company  for 
patent  on  the  Martha  Becker  Mill  Site,  Survey  Lot  No.  930  B, 
Pueblo  Land  Office,  Colorado. 

•To  the  Register  and  Eeceiver  of  said  United  States  Land  Office: 

Your  protestant,  C.  H.  Aldrich,  whose  postoffice  address  is  Chicago, 
Illinois,  a  citizen  of  the  United  States  over  the  age  of  twenty-one  years, 
hereby  respectfully  protests  against  the  entry  by,  and  issuance  of  patent 
to,  The  Anaconda  Mining  Company,  on  their  so-called  mill  site  styled  the 
Martha  Becker  Mill  Site,  Survey  Lot  No.  930  B,  situate  in  Cripple  Creek 
mining  district,  County  of  Teller,  State  of  Colorado.  Because: 

1.  The  said  so-called  mill  site  is  not  and  never  was  used  or  occupied 
in  connection  with  the  said  Martha  Becker  lode  for  mining  or  milling 
purposes. 

2.  It  is  not  and  never  was  used  or  occupied  by  the  applicant  or  its 
grantors  in  connection  with  any  lode  or  by  itself  for  mining  or  milling 
purposes. 

3.  There  are  no  improvements  and  never  have  been  any  improve- 
ments   upon    said    mill    site    except    the    improvements    made    by    you» 
protestant. 

4.  "  The  said  mill  site  is  below  the  mill  and  below  the  tailrace  of  th& 
mill  of  the  said  applicant  company,  and  has  never  been  and  is  not  now 
parcel  of  nor  appurtenant  to  said  mill,  nor  included  within  the  mill  site  on 
which  said  mill  stands. 

5.  Said  so-called  mill  site  or  a  great  part  thereof,  the  conflicting  area 
being  shown  by  the  plat  hereto  attached  duly  certified  (see  p.  603),  was 
in  good  faith  located  as  the  Lion  Mill  Site  by  your  protestant  in  the  year 
1897,  and  long  prior  to  the  said  application  and  is 'now  being  used  for 
mining  purposes  in  connection  with  the  Lion  lode,   lying  immediately 
above  the  said  mill  site,  owned  and  being  worked  by  your  protestant. 

(6,  etc.;  7,  etc.)  Add  or  substitute  other  reasons  according 
to  the  facts,  e.  g. — the  publication  was  not  posted  on  the  Land 
Office  Bulletin  during  the  period  of  newspaper  publication— 
the  location  of  said  mill  site  is  on  mineral  land  and  land  more 
valuable  for  mineral  than  for  mill  site  purposes — etc. 

Wherefore  for  these  causes  as  verified  by  the  affidavit  of  your 
protestant  attached  hereto,  and  as  well  for  the  want  of  proper  proof  that 


•In  the  General  Land  Office  the  address  is  "To  The  Honorable  the 
Commissioner  of  the  General  Land  Office. "  In  the  Department  ' '  To  The 
Honorable  the  Secretary  of  the  Interior." 


632  PKOTEST. 

the  said  so-called  Martha  Becker  Mill  Site  is  being  "used  or  occupied 
by  the  proprietor  of  the  said  Martha  Becker  lode  for  mining  or  milling 
purposes,"  as  required  by  t^e  terms  of  section  2337  of  the  Revised 
Statutes  of  the  United  States,  and  that  the  applicant  has  otherwise 
failed  to  comply  with  the  terms  of  Chapter  6  of  Title  XXXII  of  said 
Revised  Statutes,  entitled  "Mineral  Lands  and  Mining  Resources,"  your 
petitioner  protests  as  aforesaid.  C.  H.  ALDRICH. 

LAWRENCE  LEWIS,  Denver, 

Attorney  for  Protestant. 

STATE  OF  COLORADO,    )  gg 
County  of  Teller.    ) 

Before  me,  the  subscriber,  "E.  H.  Gruber,  a  Notary  Public  In  and  for 
said  County,  personally  appeared  C.  H.  Aldrich,  who,  being  duly  sworn, 
saith  that  he  is  the  protestant  named  in  the  foregoing  protest  subscribed 
by  him;  that  he  has  read  the  same  and  knows  the  contents  thereof,  and 
that  the  same  and  the  matters  and  things  therein  stated  are  true. 

C.  H.  ALDRICH. 

Sworn  and  subscribed  before  me  this  10th  day  of  January,  A.  D.  1916. 

My  commission  expires  Dec.  27,  1919. 

[SEAL]  E.  H.  GRUBER. 

Notary  Public. 

Land  Office  Jurisdiction. 

Until  by  entry  title  passes  out  of  the  United  States,  the  land 
office  has  jurisdiction  of  or  supervision  over  contests  between 
claimants.— Plested  v,  AUey,  228  U.  S.  42,  33  Sup.  Ct.  Rep. 
503,  57  L.  Ed.  724. 

Courts  are  not  bound  by  action  of  the  General  Land  Office  on 
eoi  parte  proofs.— Milner  v.  U.  S.,  228  F.  431. 

The  land  office  will  take  notice  of  a  protest  against  an  appli- 
cation for  patent  in  considering  a  second  application  to  the 
same  ground. — 44  L.  D.  125. 


TIDE  LANDS.  633 

TIDE  LANDS. 


Minerals  lying  between  high  and  low  tide,  as  well  as  under 
the  sea,  in  a  Territory,  belong  to  the  national  government,  but 
they  are  not  considered  part  of  the  public  domain  open  to  the 
settler  or  occupant  under  any  form  of  entry.  Upon  admission 
of  the  Territory  this  sovereignty  passes  to  the  State  govern- 
ment— 29  L.  D.  396 ;  Shively  v.  Bowlby,  152  U.  S.  1,  14  Sup. 
Ct.  Rep.  548,  38  L.  Ed.  331. 

The  boring  for  oil  may  be  enjoined  at  the  suit  of  the  frontage 
owner  as  an  invasion  of  his  right  of  access  to  the  ocean. — San 
Francisco  Union  v.  R.  G.  R.  Co.,  144  Gal.  134, 103  Am.  St.  Rep. 
72,  1  Ann.  Gas.  182,  66  L.  R.  A.  242,  77  P.  823. 

By  the  Alaska  Act  the  tide  lands  of  Bering  Sea  are  opened 
to  exploration  and  mining  to  wit :  The  lands  between  high  and 
low  tide,  under  miners'  rules,  and  the  lands  below  low  tide 
under  rules  to  be  prescribed  by  the  Secretary  of  War.  Such 
latter  rules  are  limited  to  "the  preservation  of  order  and  the 
protection  of  the  interest  of  commerce"  and  we  see  no  reason 
why  the  rules  generally  of  a  district  on  the  beach  should  not 
extend  to  ground  below  the  tide  on  all  points  not  covered  by 
the  Secretary's  rules. 

The  act  contemplates  only  the  temporary  working  of  this 
class  of  claims,  not  providing  for  patent  to  issue  at  any  period. 
Except  as  to  patenting,  the  U.  S.  Mining  Acts  are  extended  to 
them,  so  far  as  applicable. — Comp.  Laws,  1913,  Sec.  129. 

At  other  points,  on  shore  of  either  State  or  Territory,  mining 
by  the  first  occupant  is  a  trespass  as  against  the  government, 
but  no  third  party  has  the  right  to  complain. 

The  rights  of  parties  mining  on  such  premises  depend  on 
priority  of  possession,  and  those  rules  of  law  which  govern 
that  class  of  cases  where  the  real  owner  is  not  asserting  his 
title  but  allows  to  third  parties  the  present  enjoyment  of  the 
use,  by  sufferance. 


634  ALASKA. 

ALASKA. 

Titles  Prior  to  1900. 

From  1884  to  1900  (23  St.  L.  24)  the  laws  of  Oregon  so  far 
as  they  covered  the  subject  were  in  force.  Those  statutes  only 
required  a  location  notice  and  record  and  forbade  more  than 
one  location  by  the  same  person  on  the  same  lode.  The  uni- 
versal terms  of  Sec.  2324  of  course  applied.  And  all  possessory 
claims  prior  to  1884  were  validated  by  the  act  of  that  year. — 
Bennett  v.  Harkrader,  158  U.  S.  443,  15  Sup.  Ct.  Rep.  863,  39 
L.  Ed.  1046, 18  M.  R.  224. 

From  1900  to  1912. 

By  A.  C.  of  June  6,  1900,  31  Stat.  L.  321,  three  recording 
divisions  were  created,  the  act  fixing  their  boundaries.  These 
recording  divisions  were  subdivided  into  recording  districts. 
The  act  provided  for  record  of  mining  claims  and  for  the 
recognition  of  district  rules  allowing  90  days  after  discovery 
for  record  but  not  giving  details  of  location. 

Special    Legislation  —  Placers  —  Annual    Labor  —  Adverse 
Claims — Mechanics'  Liens. 

Alaska  was  created  a  Territory  by  A.  C.  approved  August  24, 
1912,  37  Stat.  L.  512.  Being  the  only  continental  Territory,  it 
has  been  subjected  to  many  acts  not  applicable  elsewhere. 

By  A.  C.  of  March  2, 1907,  34  Stat.  L.  1243,  a  special  annual 
labor  act  was  passed,  the  notable  feature  of  which  is  that  the 
labor  is  compulsory,  with  no  right  of  resumption  as  allowed 
elsewhere.— Thatcher  v.  Brown,  190  F.  708,  111  C.  C.  A.  436 ; 
Ebner  Co.  v.  Alaska  Co.,  210  F.  599,  127  C.  C.  A.  235. 

Annual  labor  for  1913  on  Seward  Peninsula  was  condoned 
under  certain  conditions. — 38  Stat.  L.  235. 

On  account  of  the  immensity  of  its  distances  it  has  been 
most  justly  allowed  a  longer  time  to  file  adverse  claims  and  to 
bring  the  supporting  suit.  This  time  is  eight  months  to  file 


ALASKA.  635 

and  60  days  after  filing  the  adverse  claim,  is  the  period  to  bring 
the  suit.— 36  Stat.  L.  459. 

It  has  a  special  mechanics'  lien  law. — 36  Stat.  L.  848. 

Indians. 

Right  of  Indians  to  occupy  and  alienate  land. — Worthen  Co. 
v.  Alaska  Co.,  229  P.  966. 

Tide  lands  are  declared  open  to  exploration  for  mining 
purposes  with  the  right  to  dredge  below  low  tide.— Comp. 
Laws  of  1913,  Sec.  129. 

Mining  Acts. 

In  1913  the  Territorial  Legislature  passed  a  general  mining 
act  which  was  repealed  in  1915  when  the  act  now  in  force 
was  adopted,  the  material  requirements  of  which  as  to  lode 
claims  are  found  on  page  69,  and  as  to  placers  on  page  272. 

The  full  text  of  the  A.  C.  of  August  1,  1912,  37  Stat.  L.  242, 
especially  relating  to  placer  claims  and  agency  locations,  which 
was  re-enacted  as  a  Territorial  law  as  Sees.  129a-129e  of  the 
Alaska  Laws  of  1915,  reads  as  follows: 

40-Acre  Placer  Limit — Annual  Labor. 

Sec.  129A.  That  ho  association  placer  mining  claim  shall  hereafter  be 
located  in  Alaska  in  excess  of  forty  acres,  and  on  every  placer  mining 
claim  hereafter  located  in  Alaska,  and  until  a  patent  has  been  issued 
therefor,  not  less  than  one  hundred  dollars'  worth  of  labor  shall  be  per- 
formed or  improvements  made  during  each  year,  including  the  year  of 
location,  for  each  and  every  twenty  acres  or  excess  fraction  thereof. 

Agency  Locations. 

Sec.  129B.  That  no  person  shall  hereafter  locate  any  placer  mining 
claim  in  Alaska  as  attorney  for  another  unless  he  is  duly  authorized 
thereto  by  a  power  of  attorney  in  writing,  duly  acknowledged  and 
recorded  in  any  recorder's  office  in  the  judicial  division  where  the  loca- 
tion is  made.  Any  person  so  authorized  may  locate  placer  mining  claims 
for  not  more  than  two  individuals  or  one  association  under  such  power 
of  attorney,  but  no  such  agent  or  attorney  shall  be  authorized  or  per- 


636  ALASKA. 

mitted  to  locate  more  than  two  placer  mining  claims  for  any  one  prin- 
cipal or  association  during  any  calendar  month,  and  no  placer  mining 
claim  shall  hereafter  be  located  in  Alaska  except  under  the  limitations 
of  this  Act.  See  Sutherland  v.  Purdy,  234  F.  600. 

Monthly  Limitation. 

See.  129C.  That  no  person  shall  hereafter  locate,  cause  or  procure  to  be 
located,  for  himself  more  than  two  placer  mining  claims  in  any  calendar 
month;  Provided,  That  one  or  both  of  such  locations  may  be  included  in 
an  association  claim. 

Width  of  Claim. 

Sec.  129D.  That  no  placer  mining  claim  hereafter  located  in  Alaska 
shall  be  patented  which  shall  contain  a  greater  area  than  is  fixed  by  law, 
nor  which  is  longer  than  three  times  its  greatest  width. 

Act  Mandatory. 

Sec.  129E.  That  any  placer  mining  claim  attempted  to  be  located  in 
violation  of  this  Act  shall  be  null  and  void,  and  the  whole  area  thereof 
may  be  located  by  any  qualified  locator  as  if  no  such  prior  attempt  had 
been  made. 

In  conformity  to  the  terms  of  the  A.  C.  of  March  2,  1907, 
34  Stat.  L.  1243,  Comp.  Laws  of  1913,  Sec.  162,  the  Territorial 
Legislature  describes  the  details  of  affidavit  of  annual  labor  as 
follows: 

Affidavit  of  Annual  Labor. 

In  order  to  hold  a  claim  or  claims  after  the  annual  assessment  work 
has  been  done  thereon,  the  owner  of  such  claim  or  claims,  or  some-  other 
person  having  knowledge  of  the  facts,  shall  make  and  file  an  affidavit  of 
the  performance  of  such  assessment  work  with  the  recorder  of  the  district 
in  which  such  claim  or  claims  is  or  are  located,  not  later  than  ninety  days 
after  the  close  of  the  calendar  year  in  which  such  work  was  done,  or  the 
improvements  made,  which  affidavit  shall  set  forth  the  following: 

(a)  The  name  and  number  of  the  claim  and  where  situated. 

(b)  The  number  of  the   days'   work  and  the  character  and  value 
of  the  improvements  made  thereon. 

(c)  The  date  of  the  performance  of  such  labor  and  the  making  of 
such  improvements. 

(d)  The  place  where  such  work  was  done  and  improvements  made 
with  reference  to  the  boundaries  of  such  claim. 


ALASKA.  637 

(e)  At  whose  instance  the  work  was  done  and  improvements  made- 

(f )  The  actual  amount  paid  for  such  work  and  improvements  and  by 
whom  paid,  when  such  work  was  not  done  or  improvements  made  by  the 
owner. 

The  failure  to  file  for  record  the  proof  of  assessment  work  as  herein 
provided  shall  be  deemed  an  abandonment  of  the  location  and  the  claim 
shall  be  subject  to  relocation  by  any  other  person,  provided,  however,  that 
a  compliance  with  the  provisions  of  this  section  before  any  relocation 
shall  operate  to  save  the  rights  of  the  original  locator,  and  further  pro- 
vided, that  if  said  placer  claim  or  claims  have  not  been  relocated  by  any 
other  person  or  persons  within  one  year  after  such  forfeiture,  the  last 
locator,  claimant  or  owner  of  such  forfeited  claim  may  return  to  said 
forfeited  claim  or  claims  and  relocate  the  same  as  though  the  same 
had  never  been  located. — Act  of  1915,  See.  7. 

Decisions. 

The  record  of  the  power  of  attorney  in  Alaska  is  in  time  if 
made  before  adverse  rights  accrue. — Cloninger  v.  Firilaison, 
230  F.  98. 

A  lease  is  a  conveyance  under  the  Alaska  recording  act. — 
Waskey  v.  Chambers,  224  U.  S.  564,  Ann.  Cas.  1913D,  998, 

32  Sup.  Ct.  Rep.  597,  56  L.  Ed.  885,  reversing  Eadie  v.  Cham- 
bers, 172  F.  73,  18  Ann.  Cas.  1096,  24  L.  R.  A.  (N.  S.)  879, 
96  C.  C.  A.  561. 

Coal  Lands. 

The  general  coal  lands  sections  were  extended  to  Alaska  by 
A.  C.  June  6,  1900,  31  Stat.  L.  658.  By  A.  C.  April  28,  1904, 

33  Stat.  L.  525,  this  general  law  was  specialized  for  Alaska, 
the  act  providing  for  limited  entries  and  for  publication  and 
adverse  claims  in  form  somewhat  similar  to  adverse  claim  pro- 
ceedings on  a  lode  application.    This  was  followed  by  Act  of 
May  25, 1908,  35  Stat.  L.  424,  attempting  to  give  to  the  United 
States  a  preferential  right  to  purchase  the  coal. 

But  the  act  approved  October  20, 1914,  38  Stat.  L.  741,  revo- 
lutionizes the  procedure  to  obtain  title  to  coal  lands  in  the 
Territory. 


638  PHILIPPINE  ISLANDS. 

Its  first  section  provides  for  an  official  survey  of  the  coal 
lands  and  its  second  section  calls  for  extensive  reservations  for 
government  use  and  for  the  navy. 

By  sections  3-6  lands  not  reserved  are  to  be  divided  into 
blocks  for  leasing,  and  further  clauses  provide  for  a  schedule 
of  regulations  by  the  Secretary  of  the  Interior. 

The  act  practically  denies  all  rights  to  the  prospector  and 
even  the  privilege  to  lease  becomes  accessible  only  to  those 
with  unlimited  means  to  retain  counsel  and  obtain  recognition 
by  the  department. 

Any  further  analysis  of  its  provisions  is  entirely  beyond  the 
scope  of  this  work. 

Discovery  of  an  outcrop  of  coal  in  Alaska  is  not  an  improve- 
ment under  the  Act  of  1904. — 43  L.  D.  305.  And  prospecting 
is  not  equivalent  to  discovery. — 45  L.  D.  56,  65. 


.PHILIPPINE  ISLANDS. 


An  extremely  detailed  and  complicated  mining  code  for  the 
Philippines  is  contained  in  the  Act  of  July  1,  1902,  providing 
a  temporary  government  for  those  islands. — 32  St.  L.  697. 
Materially  amended  Feb.  6,  1905.— 33  St.  L.  692. 

Reavis  v.  Fianza  is  a  decision  under  these  acts  protecting  the 
native  title  to  mines  worked  by  them  by  long  continued  posses- 
sion alone.— 215  U.  S.  16,  30  Sup.  Ct.  Rep.  1,  54  L.  Ed.  72. 


TEXT  OF  U.  S.  STATUTES  REPEALED. 

Sections  of  Act  of  July  26,  1866,  Repealed  by  Act  of  May  10, 
1872,  and  Not  Found  in  the  Revised  Statutes. 

Original  License  to  Explore. 

Sec.  1. — That  the  mineral  lands  of  the  public  domain,  both  surveyed 
and  unsurveyed,  are  hereby  declared  to  be  free  and  open  to  exploration 
and  occupation  by  all  citizens  of  the  United  States,  and  those  who  have 
declared  their  intention  to  become  citizens,  subject  to  such  regulations  as 


TEXT  OF  U.  S.  STATUTES  EEPEALED.  63i 

may  be  prescribed  by  law,  and  subject  also  to  the  local  customs  or  rules 
of  miners  in  the  several  mining  districts,  so  far  as  the  same  may  not 
be  in  conflict  with  the  laws  of  the  United  States. 

Improvements — Dip — Patent. 

Sec.  2. — That  whenever  any  person  or  association  of  persons  claim  a 
vein  or  lode  of  quartz,  or  other  rock  in  place,  bearing  gold,  silver,  cinna- 
bar, or  copper,  having  previously  occupied  and  improved  the  same  accord- 
ing to  the  local  custom  or  rules  of  miners  in  the  district  where  the  same 
is  situated,  and  having  expended  in  actual  labor  and  improvements 
thereon  an  amount  of  not  less  than  one  thousand  dollars,  and  in  regard 
to  whose  possession  there  is  no  controversy  or  opposing  claim,  it  shall 
and  may  be  lawful  for  said  claimant  or  association  of  claimants  to  file 
in  the  local  land  office  a  diagram  of  the  same,  so  extended  laterally  or 
otherwise  as  to  conform  to  the  local  laws,  customs  and  rules  of  miners, 
and  to  enter  such  tract  and  receive  a  patent  therefor,  granting  such  mine, 
together  with  the  right  to  follow  such  vein  or  lode  with  its  dips,  angles, 
and  variations,  to  any  depth,  although  it  may  enter  the  land  adjoining, 
which  land  adjoining  shall  be  sold  subject  to  this  condition. 

Application  for  Patent. 

See.  3. — That  upon  the  filing  of  the  diagram  as  provided  in  the  second 
section  of  this  Act,  and  posting  the  same  in  a  conspicuous  place  on  the 
claim,  together  with  a  notice  of  intention  to  apply  for  a  patent,  the 
register  of  the  land  office  shall  publish  a  notice  of  the  same  in  a  news- 
paper published  nearest  to  the  location  of  said  claim,  and  shall  also  post 
such  notice  in  his  office  for  the  period  of  ninety  days;  and  after  the 
expiration  of  said  period,  if  no  adverse  claim  shall  have  been  filed,  it 
shall  be  the  duty  of  the  Surveyor  General,  upon  application  of  the  party, 
to  survey  the  premises  and  make  a  plat  thereof,  indorsed  with  his  ap- 
proval, designating  the  number  and  description  of  the  location,  the  value 
of  the  labor  and  improvements,  and  the  character  of  the  vein  exposed ; 
and  upon  the  payment  to  the  proper  officer  of  five  dollars  per  acre,  to- 
gether with  the  cost  of  such  survey,  plat,  and  notice,  and  giving  satis- 
factory evidence  that  said  diagram  and  notice  have  been  posted  on  the 
claim  during  said  period  of  ninety  days,  the  register  of  the  land  office 
shall  transmit  to  the  general  land  office  said  plat,  survey,  and  description ; 
and  a  patent  shall  issue  for  the  same  thereupon.  But  said  plat,  survey,  or 
description  shall  in  no  case  cover  more  than  one  vein  or  lode,  and  no 
patent  shall  issue  for  more  than  one  vein  or  lode,  which  shall  be  expressed 
in  the  patent  issued. 


640  TEXT  OF  U.  S.  LAWS  IN  FORCE. 

Form  of  Survey — Length  of  Claim. 

Sec.  4. — That  when  such  location  and  entry  of  a  mine  shall  be  upon 
unsurveyed  lands,  it  shall  and  may  be  lawful,  after  the  extension  thereto 
of  the  public  surveys,  to  adjust  the  surveys  to  the  limits  of  the  premises 
according  to  the  location  and  possession  and  plat  aforesaid,  and  the 
surveyor  general  may,  in  extending  the  surveys,  vary  the  same  from  a 
rectangular  form  to  suit  the  circumstances \  of  the  country  and  the  local 
rules,  laws,  and  customs  of  miners;  Provided,  That  no  location  here- 
after made  shall  exceed  two  hundred  feet  in  length  along  the  vein  for 
each  locator,  with  an  additional  claim  for  discovery  to  the  discoverer 
of  the  lode,  with  the  right  to  follow  such  vein  to  any  depth,  with  all  its 
dips,  variations,  and  angles,  together  with  a  reasonable  quantity  of  sur- 
face for  the  convenient  working  of  the  same  as  fixed  by  local  rules:  And 
provided  further,  That  no  person  may  make  more  than  one  location  on 
the  same  lode,  and  not  more  than  three  thousand  feet  shall  be  taken  in 
any  one  claim  by  any  association  of  persons. — See  page  12. 

Adverse  Claims. 

See.  6. — That  whenever  any  adverse  claimants  to  any  mine  located  and 
claimed  as  aforesaid  shall  appear  before  the  approval  of  the  survey,  as 
provided  in  the  third  section  of  this  Act,  all  proceedings  shall  be  stayed 
until  a  final  settlement  and  adjudication  in  the  courts  of  competent 
jurisdiction  of  the  rights  of  possession  to  such  claim,  when  a  patent  may 
issue  as  in  other  cases.— 14  St.  L.  251. 


*FULL  TEXT  OF  UNITED  STATES  LAWS  NOW  IN 
FORCE. 

The  text  is  taken  from  the  Revised  Statutes  of  the  United 
States,  the  Compiled  Laws,  and  the  Statutes  at  Large  to  the 
first  session  of  the  Sixty-fourth  Congress,  1916.  This  revision 
includes  the  unrepealed  sections  of 

An  Act  granting  the  right  of  way  to  ditch  and  canal  owners  over  the 
public  lands,  and  for  other  purposes. — Approved  July  26,  1866. 

An  Act  to  amend  an  Act  granting  the  right  of  way  to  ditch  and  canal 
owners  over  the  public  lands,  and  for  other  purposes. — Approved  July  9, 
1870. 

An  Act  to  promote  the  development  of  the  mining  resources  of  the 
United  States.— Approved  May  10,  1872. 

*  In  44  L.  D.,  commencing  at  p.  247,  is  found  a  reprint  of  all  the 
Mining  Acts  to  August  6,  1915. 


TEXT  OF  U.  S.  LAWS  IN  FORCE.  641 

Commonly  called  the  "Mining  Acts,"  with  all  their  amend- 
ments, and  miscellaneous  sections  from  other  acts. 

The  sections  of  the  Act  of  1866,  repealed  by  the  Act  of  1872, 
are  printed,  ante  p.  638. 

TITLE  XIII,  CHAPTER  SEVENTEEN. 

Possessory  Actions. 

Sec.  910. — No  possessory  action  between  persons,  in  any  court  of  the 
United  States,  for  the  recovery  of  any  mining  title,  or  for  damages  to 
any  such  title,  shall  be  affected  by  the  fact  that  the  paramount  title  to 
the  land  in  which  such  mines  lie  is  in  the  United  States;  but  each  case 
shall  be  adjudged  by  the  law  of  possession. — Sec.  9,  Feb.  27,  1865.  See 
p.  6. 

TITLE  XXXII,  CHAPTER  SIX. 
ENTITLED  "MINERAL  LANDS  AND  MINING  RESOURCES." 

Reserved  from  Sale  Under  the  Pre-Emption  Acts. 

Sec.  -2318. — In  all  cases  lands  valuable  for  minerals  shall  be  reserved 
from  sale,  except  as  otherwise  expressly  directed  by  law. — Sec.  5,  July 
4,  1866. 

General  License. 

Sec.   2319. — All  valuable  mineral  deposits  in  lands  belonging  to  the 

United  States,  both  surveyed  and  unsurveyed,  are  hereby  declared  to  be 

free  and  open  to  exploration  and  purchase,  and  the  lands  in  which  they 

are  found  to  occupation  and  purchase,  by  citizens  of  the 

District        United  States  and  those  who  have  declared  their  inten- 

Rules  tion  to  become   such,  under  regulations   prescribed  by 

law,   and   according   to   the   local   customs   or   rules   of 

miners  in  the  several  mining  districts,  so  far  as  the  same  are  applicable 

and  not  inconsistent  with  the  laws  of  the  United  States. — Sec.  1,  May  10, 

1872.     See  p.  6. 

Length  of  Claims. 

Sec.  2320. — Mining  claims  upon  veins  or  lodes  of  quartz  or  other  rock 

in  place  bearing  gold,  silver,  cinnabar,  lead,  tin,  copper,  or  other  valuable 

deposits,  heretofore  located,  shall  be  governed  as  to  length  along  the  vein 

or  lode  by  the  customs,  regulations,  and  laws  in  force  at  the  date  of  tlioir 

location.  A  mining  claim  located  after  the  tenth  day  of 

Discovery        May,  eighteen  hundred  and  seventy-two,  whether  located 

Essential.        by  one  or  more  persons,  may  equal,  but  shall  not  exceed, 

Width  of        one  thousand  five  hundred  feet  in  length  along  the  vein 

Claims.          or  lode;  but  no  location  of  a  mining  claim  shall  be  made 

until  the  discovery  of  the  vein  or  lode  within  the  limits 

of  the  claim  located.   No  claim  shall  extend  more  than  three  hundred  feet 


642  TEXT  OF  U.  S.  LAWS  IN  FORCE. 

on  each  side  of  the  middle  of  the  vein  at  the  surface,  nor  shall  any  claim 
be  limited  by  any  mining  regulation  to  less  than  twenty-five  feet  on  each 
side  of  the  middle  of  the  vein  at  the  surface,  except  where  adverse  rights 
existing  on  the  tenth  day  of  May,  eighteen  hundred  and  seventy-two, 
render  such  limitation  necessary.  The  end  lines  of  each  claim  shall  be 
parallel  to  each  other. — Sec.  2,  May  10,  1872.  See  pp.  18,  22. 

Proof  of  Citizenship. 

Sec.  2321. — Proof  of  citizenship,  under  this  chapter,  may  consist,  in 
the  case  of  an  individual,  of  his  own  affidavit  thereof;  in  the  case  of  an 
association  of  persons  unincorporated,  of  the  affidavit  of 
Citizenship  of      their  authorized  agent,  made  on  his  own  knowledge,  or 
Corporations.       upon  information  and  belief;  and  in  the  case  of  a  cor- 
poration organized  under  the  laws  of  the  United  States, 
or  of  any  State  or  Territory  thereof,  by  the  filing  of  a  certified  copy  of 
their  charter  or  certificate  of  incorporation. — See.  7,  May  10,  1872.    See 
p.  564. 

Surface — Dip  and  Side  Veins. 

Sec.  2322. — The  locators  of  all  mining  locations  heretofore  made  or 
which  shall  hereafter  be  made,  on  any  mineral  vein,  lode,  or  ledge,  situ- 
ated on  the  public  domain,  their  heirs  and  assigns,  where  no  adverse  claim 
exists  on  the  tenth  day  of  May,  eighteen  hundred  and  seventy-two,  so 
long  as  they  comply  with  the  laws  of  the  United  States,  and  with  State, 
Territorial,  and  local  regulations  not  in  conflict  with  the  laws  of  the 
United  States  governing  their  possessory  title,  shall  have  the  exclusive 
right  of  possession  and  enjoyment  of  all  the  surface 
Top  or  Apex    included  within  the  lines  of  their  locations,  and  of  all 
Controls.        veins,  lodes,  and  ledges  throughout  their  entire  depth,  the 
top 'or  apex  of  which  lies  inside  of  such  surface  lines 
extended  downward  vertically,  although  such  veins,  lodes,  or  ledges  may 
eo  far  depart  from  a  perpendicular  in  their  course  downward  as  to  extend 
outside  the  vertical  side  lines  of  such  surface  locations.    But  their  right 
of  possession  to  such  outside  parts  of  such  veins  or  ledges  shall  be  con- 
fined to  such  portions  thereof  as  lie  between  vertical  planes  drawn  down- 
ward as  above  described,  through  the  end  lines  of  their 
Surface.        locations,  so  continued  in  their  own  direction  that  such 
planes  will  intersect  such  exterior  parts  of  such  veins  or 
ledges.   And  nothing  in  this  section  shall  authorize  the  locator  or  possessor 
of  a  vein  or  lode  which  extends  in  its  downward  course  beyond  the  vertical 
lines  of  his  claim  to  enter  upon  the  surface  of  a  claim  owned  or  possessed 
by  another.— Sec.  3,  May  10,  1872.    See  pp.  191,  202. 


TEXT  OF  U.  8.  LAWS  IN  FORCED  643 

Tunnels. 

Sec.  2323. — Where  a  tunnel  is  run  for  the  development  of  a  vein  or 
lode,  or  for  the  discovery  of  mines,  the  owners  of  such  tunnel  shall  have 
the  right  of  possession  of  all  veins  or  lodes  within  three  thousand  feet 
from  the  face  of  such  tunnel  on  the  line  thereof,  not  previously  known  to 
exist,  discovered  in  such  tunnel,  to  the  same  extent  as  if  discovered  from 
the  surface;  and  locations  on  the  line  of  such  tunnel  of  veins  or  lodes 
not  appearing  on  the  surface,  made  by  other  parties  after  the  commence- 
ment of  the  tunnel,  and  while  the  same  is  being  prosecuted  with  reasona- 
ble diligence  shall  be  invalid;  but  failure  to  prosecute  the  work  on  the 
tunnel  for  six  months  shall  be  considered  as  an  abandonment  of  the  right 
to  all  undiscovered  veins  on  the  line  of  such  tunnel. — Sec.  4,  May  10,  1872. 
See  p.  311. 

District  Rules. 

Sec.  2324. — The  miners  of  each  mining  district  may  make  regulations 
not  in  conflict  with  the  laws  of  the  United  States,  or  with  the  laws  of  the 
State  or  Territory  in  which  the  district  is  situated,  governing  the  location, 
manner  of  recording,  amount  of  work  necessary  to  hold  possession  of  a 
mining   claim,   subject  to   the    following   requirements: 
Location,        The  location  must  be  distinctly  marked  on  the  ground 
Eecord.         so  that  its  boundaries  can  be  readily  traced.   All  records 
of  mining  claims  hereafter  made  shall  contain  the  name 
or  names  of  the  locators,  the  date  of  the  location,  and  such  a  description 
of  the  claim  or  claims  located  by  reference  to  some  natural  object  or 
permanent  monument  as  will  identify  the  claim.    On  each  claim  located 
after   the    tenth    day    of    May,    eighteen    hundred    and 
Annual         seventy-two,  and  until  a  patent  has  been  issued  therefor, 
Labor.          not  less  than  one  hundred  dollars'  worth  of  labor  shall 
be  performed  or  improvements  made  during  each  year. 
On  all  claims  located  prior  to  the  tenth  day  of  May,  eighteen  hundred 
and  seventy- two,  ten  dollars'  worth  of  labor  shall  be  performed  or  im- 
provements   made   by   the    tenth    day    of   June,    eighteen    hundred    and 
seventy-four,   and  each  year  thereafter,  for  each  one  hundred   feet  in 
length  along  the  vein  until  a  patent  has  been  issued  therefor;  but  where 
such  claims  are  held  in  common,  such  expenditure  may  be  made  upon  any 
one  claim;    and   upon   a   failure   to   comply  with   these  conditions,    the 
claim  or  mine  upon  which  such  failure  occurred  shall  be  open  to  relocation 
in  the  same  manner  as  if  no  location  of  the  same  had  ever  been  made, 
provided  that  the  original  locators,  their  heirs,  assigns,  or  legal  repre- 
sentatives, have  not  resumed  work  upon  the  claim  after 
Forfeiture.      failure  and  before  such  location.    Upon  the  failure  of 
any  one  of  several  co-owners  to  contribute  his  proportion 
of  the  expenditures  required  hereby,  the  co-owners  who  have  performed 
the  labor  or  made  the  improvements  may,  at  the  expiration  of  the  year. 


644  TEXT  OF  U.  S.  LAWS  IN  FORCE. 

give  such  delinquent  co-owner  personal  notice  in  writing  or  notice  by  publi- 
cation in  the  newspaper  published  nearest  the  claim,  for  at  least  once  a 
week  for  ninety  days,  and  if  at  the  expiration  of  ninety  days  after  such 
notice  in  writing  or  by  publication  such  delinquent  should  fail  or  refuse 
to  contribute  his  proportion  of  the  expenditure  required  by  this  section, 
his  interest  in  the  claim  shall  become  the  property  of  his  co-owners  who 
have  made  the  required  expenditures. — Sec.  5,  May  10,  1872.  See  pp 
84,  114,  142. 

Amendment  of  1875 — Labor  by  Tunnel. 

That  section  two  thousand  three  hundred  and  twenty-four  of  the 
Revised  Statutes  be,  and  the  same  is  hereby  amended  so  that  where  a 
person  or  company  has  or  may  run  a  tunnel  for  the  purposes  of  develop- 
ing a  lode  or  lodes,  owned  by  said  person  or  company,  the  money  so 
expended  in  said  tunnel  shall  be  taken  and  considered  as  expended  on 
said  lode  or  lodes,  whether  located  prior  to  or  since  the  passage  of  said 
act;  and  such  person  or  company  shall  not  be  required  to  perform  work 
on  the  surface  of  said  lode  or  lodes  in  order  to  hold  the  same  as  required 
by  said  act. — See.  1,  Feb.  11,  1875.  Comp.  Laws,  p.  1427.  See  page  319. 

Amendment  of  1880 — Annual  Labor  Period  Fixed. 

That  section  twenty-three  hundred  and  twenty-four  of  the  Revised 
Statutes  of  the  United  States  be  amended  by  adding  the  following  words : 
"Provided,  That  the  period  within  which  the  work  required  to  be  done 
annually  on  all  unpatented  mineral  claims  shall  commence  on  the  first  day 
of  January  succeeding  the  date  of  location  of  such  claim,  and  this  section 
shall  apply  to  all  claims  located  since  the  tenth  day  of  May,  anno  Domini 
eighteen  hundred  and  seventy-two." — See.  2,  January  22,  1880.  Comp  L. 
p.  1427.  See  p.  114. 

Application  for  Patent. 

Sec.  2325. — A  patent  for  any  land  claimed  and  located  for  valuable 
deposits  may  be  obtained  in  the  following  manner:  Any  person,  associa- 
tion, or  corporation  authorized  to  locate  a  claim  under  this  chapter, 
having  claimed  and  located  a  piece  of  land  for  such  purposes,  who  has, 
or  have,  complied  with  the  terms  of  this  chapter,  may  file  in  the  proper 
land  office  an  application  for  a  patent,  under  oath,  showing  such  com- 
pliance, together  with  a  plat  and  field  notes  of  the  claim  or  claims  in 
common,  made  by  or  under  the  direction  of  the  United  States  Surveyor 
General,  showing  accurately  the  boundaries  of  the  claim  or  claims,  which 
shall  be  distinctly  marked  by  monuments  on  the  ground,  and  shall  post  a 
copy  of  such  plat,  together  with  a  notice  of  such  application  for  a  patent, 


TEXT  OF  U.  S.  LAWS  IX  FORCE.  G4.5 

in  a  conspicuous  place  on  the  land  embraced  in  such  plat  previous  to  the 
filing  of  the  application  for  a  patent,  and  shall  file  an  affidavit  of  at 
least  two  persons  that  such  notice  has  been  duly  posted,  and  shall  file  a 
copy  of  the  notice  in  such  land  office,  and  shall  thereupon  be  entitled  to 
a  patent  for  the  land,  in  the  manner  following :     The  register  of  the  land 
office,   upon  the   filing    of   such   application,   plat,   field 
60  Days'       notes,  notices,  and  affidavits,  shall  publish  a  notice  that 
Publication,     such  application  has  been  made,  for  the  period  of  sixty 
days,  in  a  newspaper  to  be  by  him  designated  as  pub- 
lished nearest  to  such  claim;  and  he  shall  also  post  such  notice  in  his 
offica  for  the  same  period.    The  claimant  at  the  time  of  filing  this  appli- 
cation, or  at  any  time  thereafter,  within  the  sixty  days  of  publication, 
shall  file  with  the  register  a  certificate  of  the  United 
$500  Improve-  States  Surveyor  General  that  five  hundred  dollars '  worth ' 
ments.          of  labor  has  been  expended  or  improvements  made  upon 
the  claim  by  himself  or  grantors ;  that  the  plat  is  correct, 
with  such  further  description  by  such  reference  to  natural  objects  or 
permanent  monuments  as  shall  identify  the  claim,  and  furnish  an  accurate 
description,  to  be  incorporated  in  the  patent.     At  the  expiration  of  the 
sixty  days  of  publication  the  claimant  shall  file  his  affidavit,  showing  that 
the  plat  and  notice  have  been  posted  in  a  conspicuous 
Adverse         place  on  the  claim  during  such  period  of  publication. 
Claim.          If  no  adverse  claim  shall  have  been  filed  with  the  register 
and  the  receiver  of  the  proper  land  office  at  the  expira- 
tion  of   the    sixty  days   of   publication,   it   shall   be   assumed    that   the 
applicant  is  entitled  to  a  patent,  upon  the  payment  to 
£5  per         the  proper  officer  of  five  dollars  per  acre,  and  that  no 
Acre.          adverse  claim  exists;  and  thereafter  no  objection  from 
third  parties  to  the  issuance  of  a  patent  shall  be  heard, 
except  it  be  shown  that  the  applicant  has  failed  to  comply  with  the  terms 
of  this  chapter.— Sec.  6,  May  10,  1872.    See  APPUCATION  FOB  PATENT, 
p.  540. 

Application  by  Non-Residents. 

That  section  twenty-three  hundred  and  twenty-five  of  the  Revised 
Statutes  of  the  United  States  be  amended  by  adding  thereto  the  following 
words:  "Provided,  That  where  the  claimant  for  a  patent  is  not  a  resi- 
dent of  or  within  the  land  district  wherein  the  vein,  lode,  ledge,  or  deposit 
sought  to  be  patented  is  located,  the  application  for  patent  and  the 
affidavits  required  to  be  made  in  this  section  by  the  claimant  for  such 
patent  may  be  made  by  his,  her,  or  its  authorized  agent,  where  said  agent 
is  conversant  with  the  facts  sought  to  be  established  by  said  affidavits; 

"And  provided,  That  this  section  shall  apply  to  all  applications  now 
pending  for  patents  to  mineral  lands." — Sec.  1,  January  22,  1880.  Comp. 
L.  p.  1429.  See  page  578. 


646  TEXT  OF  U.  S.  LAWS  IN  FORC^. 

Adverse  Claims. 

Sec.  2326. — Where  an  adverse  claim  is  filed  during  the  period  of  pub- 
lication, it  shall  be  upon  oath  of  the  person  or  persons  making  the  same, 
and  shall  show  the  nature,  boundaries,  and  extent  of  such  adverse  claim, 
and  all  proceedings,  except  the  publication  of  notice  and  making  and  filing 
of  the  affidavit  thereof,  shall  be  stayed  until  the  con- 
Suit  Support-    troversy  shall  have  been  settled  or  decided  by  a  Court 
ing  in  SO       of  competent  jurisdiction,  or  the  adverse  claim  waived. 
Days.          It  shall  be  the  duty  of  the  adverse  claimant,   within 
thirty  days  after  filing  his  claim,  to  commence  proceed- 
ings in  a  Court  of  competent  jurisdiction,  to  determine  the  question  of 
the  right  of  possession,  and  prosecute  the  same  with  reasonable  diligence 
to  final  judgment;   and  a  failure  so  to  do  shall  be  a 
Proceedings     waiver  of  his  adverse  claim.    After  such  judgment  shall 
After          have  been  rendered,  the  party  entitled  to  the  possession 
Judgment.       of  the  claim,  or  any  portion  thereof,  may,  without  giving 
further  notice,  file  a  certified  copy  of  the  judgment-roll 
with  the  register  of  the  land  office,  together  with  the  certificate  of  the 
Surveyor  General  that  the  requisite  amount  of  labor  has  been  expended  or 
improvements  made  thereon,  and  the  description  required  in  other  cases, 
and  shall  pay  to  the  receiver  five  dollars  per  acre  for  his  claim,  together 
with  the  proper  fees,  whereupon  the  whole  proceedings  and  the  judgment- 
roll  shall  be  certified  by  the  register  to  the  Commissioner  of  the  General 
Land  Office,  and  a  patent  shall  issue  thereon  for  the  claim,  or  such  portion 
thereof  as  the  applicant  shall  appear,  from  the  decision  of  the  Court, 
to  rightly  possess.     If  it  appears  from  the  decision  of  the  Court  that 
several  parties  are  entitled  to  separate  and  different  portions  of  the  claim, 
each  party  may  pay  for  his  portion  of  the  claim,  with  the  proper  fees, 
and  file  the  certificate  and  description  by  the  Surveyor  General,  whereupon 
the  register  shall  certify  the  proceedings  and  judgment-roll  to  the  Com- 
missioner  of  the  General  Land  Office,  as  in  the  preceding  case,  and  patents 
shall  issue  to  the  several  parties  according  to  their  respective  rights. 
Nothing  herein  contained  shall  be  construed  to  prevent  the  alienation  of 
the  title  conveyed  by  a  patent  for  a  mining  claim  to  any  person  what- 
ever.—Sec.  7,  May  10,  1872.    See  p.  599. 

Title  in  Neither  Party. 

That  if,  in  any  action  brought  pursuant  to  section  twenty-three  hun- 
dred and  twenty-six  of  the  Eevised  Statutes,  title  to  the  ground  in  con- 
troversy shall  not  be  established  by  either  party,  the  jury  shall  so  find, 
and  judgment  shall  be  entered  according  to  the  verdict.  In  such  case 
costs  shall  not  be  allowed  to  either  party,  and  the  claimant  shall  not 
proceed  in  the  land  office,  or  be  entitled  to  a  patent  for  the  ground  in 
controversy  until  he  shall  have  perfected  his  title. — March  3,  1881.  Comp. 
L.  p.  1431.  See  p.  624. 


TEXT  OF  U.  S.  LAWS  IN  FORCE,  647 

Adverse  by  Agent  for  Non-Residents. 

That  the  adverse  claim  required  by  section  twenty-three  hundred  and 
twenty-six  of  the  Eevised  Statutes  may  be  verified  by  the  oath  of  any 
duly  authorized  agent  or  attorney-in-fact  of  the  adverse  claimant  cog- 
nizant of  the  facts  stated;  and  the  adverse  claimant,  if  residing  or  at  the 
time  being  beyond  the  limits  of  the  district  wherein  the  claim  is  situated, 
may  make  oath  to  the  adverse  claim  before  the  clerk  of  any  Court  of 
record  of  the  United  States  or  of  the  State  or  Territory  where  the  adverse 
claimant  may  then  be,  or  before  any  notary  public  of  such  State  or 
Territory. — Sec.  1,  April  26,  1882.  Comp.  L.  p.  1431. 

Affidavits  Out  of  Land  District. 

That  applicants  for  mineral  patents,  if  residing  beyond  the  limits  of 
the  district  wherein  the  claim  is  situated,  may  make  any  oath  or  affidavit 
required  for  proof  of  citizenship  before  the  clerk  of  any  Court  of  record 
or  before  any  notary  public  of  any  State  or  Territory. — Sec.  2,  Id.  Comp. 
L.  p.  1425. 

Survey  Amendment  of  1904. 

*See.  2327. — The  description  of  vein  or  lode  claims  upon  surveyed 
lands  shall  designate  the  location  of  the  claims  with  reference  to  the  lines 
of  the  public  survey,  but  need  not  conform  therewith;  but  where  patents 
have  been  or  shall  be  issued  for  claims  upon  unsurveyed  lands,  the  Sur- 
veyors General,  in  extending  the  public  survey,  shall  adjust  the  same  to 
the  boundaries  of  said  patented  claims  so  as  in  no  case  to  interfere  with 
or  change  the  true  location  of  such  claims  as  they  are  officially  established 
upon  the  ground.  Where  patents  have  issued  for  mineral  lands,  those 
lands  only  shall  be  segregated  and  shall  be  deemed  to  be  patented  which 
are  bounded  by  the  lines  actually  marked,  denned,  and  established  upon 
the  ground  by  the  monuments  of  the  official  survey  upon  which  the  patent 
grant  is  based,  and  Surveyors  General  in  executing  subsequent  patent 
surveys,  whether  upon  surveyed  or  unsurveyed  lands,  shall  be  governed 
accordingly.  The  said  monuments  shall  at  all  times  constitute  the  highest 


Section  2327  Prior  to  Amendment. 

*Sec.  2327. — The  description  of  vein  or  lode  claims,  upon  surveyed 
lands,  shall  designate  the  location  of  the  claim  with  reference  to  the  lines 
of  the  public  surveys,  but  need  not  conform  therewith ;  but  where  a  patent 
shall  be  issued  for  claims  upon  unsurveyed  lands,  the  Surveyor  General,  in 
extending  the  surveys,  shall  adjust  the  same  to  the  boundaries  of  such 
patented  claim,  according  to  the  plat  or  description  thereof,  but  so  as  in 
no  ease  to  interfere  with  or  change  the  location  of  any  such  patented 
claim.— Sec.  8,  May  10,  1872. 


648  TEXT  OF  U.  S.  LAWS  IN  FORCE,. 

authority  as  to  what  land  is  patented,  and  in  case  of  any  conflict  between 
the  said  monuments  of  such  patented  claims  and  the  descriptions  of  said 
claims  in  the  patents  issued  therefor  the  monuments  on  the  ground  shall 
govern,  and  erroneous  or  inconsistent  descriptions  or  calls  in  the  patent 
descriptions  shall  give  away  thereto. — April  28,  1904.  33  St.  L.  545. 

Previous  Applications. 

Sec.  2328. — Applications  for  patents  for  mining  claims  under  former 
laws  now  pending  may  be  prosecuted  to  a  final  decision  in  the  General 
Land  Office;   but  in  such  cases  where  adverse  rights  are  not  affected 
thereby,  patents  may  issue  in  pursuance  of  the  provisions 
Adverse         of  this  chapter;  and  all  patents  for  mining  claims  upon 
Bights          veins  or  lodes  heretofore  issued  shall  convey  all  the  rights 
Excepted.      and  privileges  conferred  by  this  chapter  where  no  ad- 
verse rights  existed  on  the  tenth  day  of  May,  eighteen 
hundred  and  seventy-two.— Sec.  9,  May  10,  1872.    See  p.  190. 

Placers  Open  to  Entry. 

Sec.  2329. — Claims  usually  called  "placers,"  including  all  forms  of 
deposit,  excepting  veins  of  quartz,  or  other  rock  in  place,  shall  be  subject 
to  entry  and  patent,  under  like  circumstances  and  conditions,  and  upon 
similar  proceedings,  as  are  provided  for  vein  or  lode  claims;  but  where 
the  lands  have  been  previously  surveyed  by  the  United  States,  the  entry  in 
its  exterior  limits  shall  conform  to  the  legal  subdivisions  of  the  public 
lands.— Sec.  12,  July  9,  1870.  See  p.  257. 

Oil  Placer  Act. 

That  any  person  authorized  to  enter  lands  under  the  mining  laws  of  the 
United  States  may  enter  and  obtain  patent  to  lands  containing  petroleum 
or  other  mineral  oils,  and  chiefly  valuable  therefor,  under  the  provisions 
of  the  laws  relating  to  placer  mineral  claims;  Provided,  That  lands  con- 
'taining  such  petroleum  or  other  mineral  oils  which  have  heretofore  been 
filed  upon,  claimed,  or  improved  as  mineral,  but  not  yet  patented,  may  be 
held  and  patented  under  the  provisions  of  this  act  the  same  as  if  such 
filing,  claim,  or  improvement  were  subsequent  to  the  date  of  the  passage 
hereof.— Feb.  11,  1897.  29  St.  L.  526.  See  p.  686. 

Annual  Labor  on  Oil  Claims.— See  p.  142. 

Saline  Placer  Act. 

That  all  unoccupied  public  lands  of  the  United  States  containing  salt 
springs,  or  deposits  of  salt  in  any  form,  and  chiefly  valuable  therefor,  are 
hereby  declared  to  be  subject  to  location  and  purchase  under  the  provis- 
ions of  the  law  relating  to  placer  mining  claims:  Provided,  That  the 


TEXT  OF  U.  S.  LAWS  IN  FORCE.  649 

same  person  shall  not  locate  or  enter  more  than  one  claim  hereunder.— 
Jan.  31,  1901.   31  St.  L.  745.    See  p.  261. 

Legal  Subdivision  of  Placers. 

Sec.  2330. — Legal  subdivisions  of  forty  acres  may  be  subdivided  into 

ten-acre   tracts;    and  two   or  more  persons,   or  associations  of  persons, 

having  contiguous  claims  of  any  size,  although  such  claims  may  be  less 

than  ten  acres  each,  may  make  joint  entry  thereof;  but  no  location  of  a 

placer  claim,  made  after  the  ninth  day  of  July,  eighteen 

160  Acre       hundred  and  seventy,  shall  exceed  one  hundred  and  .sixty 

Placers.         acres  for  any  one  person  or  association  of  persons,  which 

locatiou  shall   conform   to  the  United   States   surveys; 

and  nothing  in  this  section  contained  shall  defeat  or  impair  any  ~bona  fide 

pre-emption  or  homestead  claim  upon  agricultural  lands,  or  authorize  the 

sale  of  the  improvements  of  any  ~bona  fide  settler  to  any  purchaser. — Sec. 

12,  July  9,  1S70.    See  p.  257. 

Placers  on  Surveyed  Lands. 

Sec.  2331. — Where  placer  claims  are  upon  surveyed  lands,  and  con- 
form to  legal  subdivisions,  no  further  survey  or  plat  shall  be  required,  and 
all  placer  mining  claims  located  after  the  tenth  day  of  May,  eighteen 
hundred  and  seventy-two,  shall  conform  as  near  as  practicable  with  the 
United  States  system  of  public  land  surveys,  and  the  rectangular  sub- 
divisions of  such  surveys,  and  no  such  location  shall  include  more  than 
twenty  acres  for  each  individual  claimant;  but  where  placer  claims  can 
not  be  conformed  to  legal  subdivisions,  survey  and  plat  shall  be  made  as 
on  unsnrveyed  lands;  and  where  by  the  segregation  of  mineral  land  in 
any  legal  subdivision  a  quantity  of  agricultural  land  less  than  forty  acres 
remains,  such  fractional  portion  of  agricultural  land  may  be  entered  by 
any  party  qualified  by  law,  for  homestead  or  pre-emption  purposes.— 
Sec.  10,  May  10,  1872.  See  p.  257. 

Limitations. 

Sec.  2332. — Where  such  person  or  association,  they  and  their  grantors, 
have  held  and  worked  their  claims  for  a  period  equal  to  the  time  pre- 
scribed by  the  statute  of  limitations  for  mining  claims  of  the  State  or 

Territory  where  the  same  may  be  situated,  evidence  of 
Liens.  such  possession  and  working  of  the  claims  for  such 

period  shall  be  sufficient  to  establish  a  right  to  a  patent 
thereto  under  this  chapter,  in  the  absence  of  any  adverse  claim;  but 
nothing  in  this  chapter  shall  be  deemed  to  impair  any  lien  which  may 
have  attached  in  any  way  whatever  to  any  mining  claim  or  property 
thereto  attached  prior  to  the  issuance  of  a  patent.— Sec.  13,  July  9,  1870. 
See  pp.  323,  477. 


650  TEXT  OP  U.  S.  LAWS  I 

Placer  Claim  Containing  Lode. 

Sec.  2333. — Where  the  same  person,  association,  or  corporation  is  in 
possession  of  a  placer  claim,  and  also  a  vein  or  lode  included  within  the 
boundaries  thereof,  application  shall  be  made  for  a  patent  for  the  placer 
claim,  with  the  statement  that  it  includes  such  vein  or  lode,  and  in  such 
case  a  patent  shall  issue  for  the  placer  claim,  subject  to  the  provisions  of 
this  chapter,  including  such  vein  or  lode,  upon  the  payment  of  five  dollars 

per  acre  for  such  vein  or  lode  claim,  and  twenty-five  feet 

Placers  $3.50    of  surface  on  each  side  thereof.     The  remainder  of  the 

ptr  Acre.      placer  claim  or  any  placer   claim   not  embracing   any 

vein  or  lode  claim,  shall  be  paid  for  at  the  rate  of  two 
dollars  and  fifty  cents  per  acre,  together  with  all  costs  of  proceedings ;  and 
where  a  vein  or  lode,  such  as  is  described  in  section  twenty-three  hundred 
and  twenty,  is  known  to  exist  within  the  boundaries  of  a  placer  claim,  an 
application  for  a  patent  for  such  placer  claim  which  does  not  include  an 
application  for  the  vein  or  lode  claim  shall  be  construed  as  a  conclusive 
declaration  that  the  claimant  of  the  placer  claim  has  no  right  of  possession 
of  the  vein  or  lode  claim;  but  where  the  existence  of  a  vein  or  lode  in  a 
placer  claim  is  not  known,  a  patent  for  the  placer  claim  shall  convey  all 
valuable  mineral  and  other  deposits  within  the  boundaries  thereof. — Sec. 
11,  May  10,  1872.  See  p.  280. 


Deputy  Surveyor  and  Fees. 

Sec.  2334. — The -Survey  or  General  of  the  United  States  may  appoint  in 
each  land  district  containing  mineral  lands  as  many  competent  surveyors 
as  shall  apply  for  appointment  to  survey  mining  claims.     The  expenses 
of  the  survey  of  vein  or  lode  claims,  and  the  survey  and  subdivision  of 
placer  claims  into  smaller  quantities  than  one  hundred  and  sixty  acres, 
together  with  the  cost  of  publication  of  notices,  shall  be  paid  by  the  appli- 
cants, and   they  shall  be  at  liberty  to   obtain  the   same   at   the  most 
reasonable  rates,  and  they  shall  also  be  at  liberty  to  employ  any  United 
States  deputy  surveyor  to  make  the  survey.     The  Com- 
CJiarges  for     missioner  of  the  General  Land  Office  shall  also  have 
Publication,     power  to  establish  the  maximum  charges  for  surveys  and 
publication  of  notices  under  this  chapter ;  and,  in  case  of 
excessive  charges  for  publication,  he  may  designate  any  newspaper  pub- 
lished in  a  land  district  where  mines  art  situated  for  the  publication 
of  mining  notices  in  such  district,  and  fix  the  rates  to  be  charged  by  such 
paper;  and,  to  the  end  that  the  Commissioner  may  be  fully  informed  on 
the  subject,  each  applicant  shall  file  with  the  register  a  sworn  statement 
of  all  charges  and  fees  paid  by  such  applicant  for  publication  and  surveys, 
together  with  all  fees  and  money  paid  the  register  and  receiver  of  the 
land  office,  which  statement  shall  be  transmitted,  with  the  other  papers  in 


TEXT  OF  U.  S.  LAWS  IN  FORCE,.  651 

Ilio   case,   to   the   Commissioner   of    the   General   Land   Office. — Sec.    12, 
May  10,  1872.    See  p.  514. 

Affidavits  and  Proofs. 

Sec.  2335. — All  affidavits  required  to  be  made  under  this  chapter  may 
be  verified  before  any  officer  authorized  to  administer  oaths  within  the 
land  district  where  the  claims  may  be  situated,  and  all  testimony  and 
proofs  may  be  taken  before  any  such  officer,  and,  when  duly  certified  by 
the  officer  taking  the  same,  shall  have  the  same  force  and 
Agricultural    effect  as  if  taken  before  the  register  and  receiver  of  the 
Contest.        land  office.     In  eases  of  contest  as  to  the  mineral  or 
agricultural  character  ojf  land,  the  testimony  and  proofs 
may  be  taken  as  herein  provided  on  personal  notice  of  at  least  ten  days 
to  the  opposing  party;  or  if  such  party  can  not  be  found,  then  by  publica- 
tion of  at  least  once  a  week  for  thirty  days  in  a   newspaper,   to  be 
designated  by  the  register  of  the  land  office  as  published  nearest  to  the 
location  of  such  land;   and  the  register  shall  require  proof  that   such 
notice  has  been  given. — See.  13,  May  10,  1872.    See  p.  516. 

Cross  Veins. 

Sec.  2336. — Where  two  or  more  veins  intersect  or  cross  each  other, 
priority  of  title  shall  govern,  and  such  prior  location  shall  be  entitled 
to  all  ore  or  mineral  contained  within  the  space  of  intersection;  but  the 
subsequent  location  shall  have  the  right  of  way  through 
Veins  Uniting  the  space  of  intersection  for  the  purposes  of  the  con- 
on  the  Dip.     venient  working  of  the  mine.     And  where  two  or  more 
veins  unite,  the  oldest  or  prior  location  shall  take  the 
vein  below  the  point  of  union,  including  all  the  space  of  intersection. — 
Sec.  14,  May  10,  1872.    See  pp.  185,  188. 

Mill  Sites. 

Sec.  2337. — Where  non-mineral  land  not  contiguous  to  the  vein  or  lode 
is  used  or  occupied  by  the  proprietor  of  such  vein  or  lode  for  mining  or 
milling  purposes,  such  non-adjacent  surface  ground  may  be  embraced  and 
included  in  an  application  for  a  patent  for  such  vein  or  lode,  and  the 
same  may  be  patented  therewith,  subject  to  the  same  preliminary  require- 
ments as  to  survey  and  notice  as  are  applicable  to  veins  or  lodes;  but  no 
location  hereafter  made  of  such  non-adjacent  land  shall  exceed  five  acres, 
and  payment  for  the  same  must  be  made  at  the  same  rate  as  fixed  by 
this  chapter  for  the  superficies  of  the  lode.  The  owner  of  a  quartz  mill 
or  reduction  works,  not  owning  a  mine  in  connection  therewith,  may  also 
receive  a  patent  for  his  mill  site,  as  provided  in  this  section. — Sec.  15, 
May  10,  1872.  See  p.  294. 


652  TEXT  OF  U.  S.  LAWS  IN  FORCE. 

Easements. 

Sec.  2338. — As  a  condition  of  sale,  in  the  absence  of  necessary  legisla- 
tion by  Congress,  the  local  Legislature  of  any  State  or  Territory  may 
provide  rules  for  working  mines,  involving  easements,  drainage,  and  other 
necessary  means  to  their  complete  development,  and  those  conditions  shall 
be  fully  expressed  in  the  patent. — See.  5,  July  26,  1866.  Sue  p.  243. 

Water  Rights — Appropriation. 

Sec.  2339. — Whenever,  by  priority  of  possession,  rights  to  the  use  of 
water  "for  mining,  agricultural,  manufacturing,  or  other  purposes,  have 
vested  and  accrued,  and  the  same  are  recognized  and  acknowledged  by  the 
local  customs,  laws,  and  the  decisions  of  Courts,  the  possessors  and  owners 
of  such  vested  rights  shall  be  maintained  and  protected  in  the  same;  and 
the  right  of  way  for  the  construction  of  ditches  and  canals  for  the  pur- 
poses herein  specified  is  acknowledged  and  confirmed;  but  whenever  any 
person,  in  the  construction  of  any  ditch  or  canal,  injures  or  damages  the 
possession  of  any  settler  on  the  public  domain,  the  party  committing  such 
injury  or  damage  shall  be  liable  to  the  party  injured  for  such  injury  or 
damage.— Sec.  9,  July  26,  1866.  See  p.  233. 

1  •     f  t  O 

Patents  Subject  to  Water  Easements. 

Sec.  2340. — All  patents  granted,  or  pre-emption  or  homesteads  allowed, 
shall  be  subject  to  any  vested  and  accrued  water  right,  or  rights  to  ditches 
and  reservoirs  used  in  connection  with  such  water  rights,  as  may  have  been 
acquired  under  or  recognized  by  the  preceding  section. — See.  17,  July  9, 
1870.  See  p.  234. 

Homesteads. 

Sec.  2341. — Wherever,  upon  lands  heretofore  -designated  as  mineral 
lands,  which  have  been  excluded  from  survey  and  sale,  there  have  been 
homesteads  made  by  citizens  of  the  United  States,  or  persons  who  have 
declared  their  intention  to  become  citizens,  which  homesteads  have  been 
made,  improved,  and  used  for  agricultural  purposes,  and  upon  which  there 
have  been  no  valuable  mines  of  gold,  silver,  cinnabar,  or  copper  discov- 
ered, and  which  are  properly  agricultural  lands,  the  settlers  or  owners  of 
such  homesteads  shall  have  a  right  of  pre-emption  thereto,  and  shall  be 
entitled  to  purchase  the  same  at  the  price  of  one  dollar  and  twenty-five 
cents  per  acre,  and  in  quantity  not  to  exceed  one  hundred  and  sixty  acres; 
or  they  may  avail  themselves  of  the  provisions  of  chapter  five  of  this 
Title,  relating  to  "  HOMESTEADS.  "—Sec.  10,  July  26,  1866. 


TEXT  OF  U.  S.  LAWS  IN  FOKCE,  653 

Segregation  of  Agricultural  Lands. 

Sec.  2342. — Upon  the  survey  of  the  lands  described  in  the  preceding 
section,  the  Secretary  of  the  Interior  may  designate  and  set  apart  such 
portions  of  the  same  as  are  clearly  agricultural  lands,  which  lands  shall 
thereafter  be  subject  to  pre-emption  and  sale  as  other  public  lands,  and 
be  subject  to  all  the  laws  and  regulations  applicable  to  the  same. — 
Sec.  11,  July  26,  1866. 

Land  Districts. 

Sec.  2343. — The  President  is  authorized  to  establish  additional  land 
districts,  and  to  appoint  the  necessary  officers  under  existing  laws, 
wherever  he  may  deem  the  same  necessary  for  the  public  convenience  in 
executing  the  provisions  of  this  chapter. — Sec.  7,  July  26,  1866. 

Building  Stone  Act. 

That  any  person  authorized  to  enter  lands  under  the  mining  laws  of 
the  United  States  may  enter  lands  that  are  chiefly  valuable  for  building 
stone  under  the  provisions  of  the  law  in  relation  to  placer  mineral  claims : 
Provided,  That  lands  reserved  for  the  benefit  of  the  public  schools  or 
donated  to  any  State  shall  not  be  subject  to  entry  under  this  act. — A.  C. 
Aug.  4,  1892.— 27  Stat.  L.  348. 

Sec.  2344. — Saving  Clause  as  to  Sutro  Tunnel  Act. 

Sec.  2345. — Excepts  Michigan,  Wisconsin  and  Minnesota.* 

State  and  Railroad  Grants. 

Sec.  2346. — No  act  passed  at  the  first  session  of  the  Thirty-eighth  Con- 
gress, granting  lands  to  States  or  corporations  to  aid  in  the  construction 
of  roads  or  for  other  purposes,  or  to  extend  the  time  of  grants  made 
prior  to  the  thirtieth  day  of  January,  eighteen  hundred  and  sixty-five, 
shall  be  so  construed  as  to  embrace  mineral  lands,  which  in  all  cases  are 
reserved  exclusively  to  the  United  States,  unless  otherwise  specially 
provided  in  the  act  or  acts  making  the  grants. — Res.  No.  10,  January  30, 
1865. 

Rights  of  Canadians  in  Alaska. 

Sec.  13. — That  native-born  citizens  of  the  Dominion  of  Canada  shall 
be  accorded  in  said  District  of  Alaska  the  same  mining  rights  and  privi- 


*By  Act  of  May  5,  1876,  Missouri  and  Kansas  are  excepted  from  the 
operation  of  the  Mining  Act.  By  Act  of  March  3,  1883,  Alabama  is 
excepted. 


654  TEXT  OF  U.  S.  LAWS  IN  FORCE. 

leges  accorded  to  citizens  of  the  United  States  in  British  Columbia  and 
the  Northwest  Territory  by  the  laws  of  the  Dominion  of  Canada  or  the 
local  laws,  rules,  and  regulations;  but  no  greater  rights  shall  be  thus 
accorded  than  citizens  of  the  United  States  or  persons  who  have  declared 
their  intention  to  become  such  may  enjoy  in  said  District  of  Alaska;  and 
the  Secretary  of  the  Interior  shall  from  time  to  time,  promulgate  and 
enforce  rules  and  regulations  to  carry  this  provision  into  effect. — 
Approved  May  14,  1898.  30  St.  L.  415.  See  Eule  112,  p.  523. 

Return  of  Excess  Payments  by  Surveyor  General. 

That  the  Secretary  of  the  Treasury  be,  and  he  is  hereby,  authorized 
and  directed  to  pay,  out  of  the  moneys  heretofore  or  hereafter  covered 
into  the  treasury  from  deposits  made  by  individuals  to  cover  cost  of  work 
performed  and  to  be  performed  in  the  offices  of  the  United  States  Sur- 
veyors General  in  connection  with  the  survey  of  mineral  lands,  any  excess 
in  the  amount  deposited  over  and  above  the  actual  cost  of  the  work 
performed,  including  all  expenses  incident  thereto  for  which  the  deposits 
were  severally  made  or  the  whole  of  any  unused  deposit;  and  such  sums, 
as  the  several  cases  may  be,  shall  be  deemed  to  be-  annually  and  perma- 
nently appropriated  for  that  purpose.  Such  repayments  shall  be  made  to 
the  person  or  persons  who  made  the  several  deposits,  or  to  his  or  their 
legal  representatives,  after  the  completion  or  abandonment  of  the  work 
for  which  the  deposits  were  made,  and  upon  an  account  certified  by  the 
Surveyor  General  of  the  district  in  which  the  mineral  land  surveyed,  or 
sought  to  be  surveyed  is  situated  and  approved  by  the  Commissioner  of 
the  General  Land  Office. — Approved  Feb.  24,  1909.  35  St.  L.  645. 

When  a  military  reservation  is  vacated  the  mineral  lands 
become  part  of  the  public  domain.— A.  C.  July  5,  1884,  23  St. 
L.  103. 


COAL  LANDS.  655 

COAL  LANDS. 


Legal  Subdivisions. 

Sec.  2347. — Every  person  above  the  age  of  twenty-one  years,  who  is  a 

citizen  of  the  United  States  or  who  has  declared  his  intention  to  become 

such,  or  any  association  of  persons  severally  qualified  as  above,  shall,  upon 

application  to  the  register  of  the  proper  land  office,  have  the  right  to 

enter,  by  legal  subdivisions,  any  quantity  of  vacant  coal  lands  -of  the 

United  States  not  otherwise  appropriated  or  reserved  by 

160  or  SSO      competent    authority,    not    exceeding    one   hundred    and 

Acres  $10  to    sixty  acres  to  such  individual  person,  or  three  hundred 

$SO  per  Acre,  and  twenty  acres  to  such  association,  upon  payment  to 

the  receiver  of  not  less  than  ten  dollars  per  acre  for  such 

land,  where  the  same  shall  be  situated  more  than  fifteen  miles  from  any 

completed  railroad,  and  not  less  than  twenty  dollars  per  acre  for  such 

lands  as  shall  be  within  fifteen  miles  of  such  road. — Sec.  1,  March  3,  1873. 

Settlers  Preferred. 

Sec.  2348. — Any  person  or  association  of  persons  severally  qualified  as 

above  provided,  who  have  opened  and  improved  or  shall  hereafter  open 

and  improve,  any  coal  mine  or  mines  upon  the  public  lands,  and  shall  be 

in  actual  possession  of  the  same,  shall  be  entitled  to  a 

640  Acre        preference-right  of  entry,  under  the  preceding  section, 

Tracts.          of  the  mines  so  opened  and  improved:    Provided,  That 

when   any   association    of   not   less   than    four   persons, 

severally  qualified  as  above  provided,  shall  have  expended  not  less  than 

five  thousand  dollars  in  working  and  improving  any  such  mine  or  mines, 

such  association  may  enter  not  exceeding  six  hundred  and  forty  acres, 

including  such  mining  improvements. — See.  2,  Id. 

Land  Office  Proceedings. 

Sec.  2349.— -All  claims  under  the  preceding  section  must  be  presented 
to  the  register  of  the  proper  land  district  within  sixty  days  after  the  date 
if  actual  possession  and  the  commencement  of  improvements  on  the  land, 
by  the  filing  of  a  declaratory  statement  therefor;  but  when  the  township 
plat  is  not  on  file  at  the  date  of  such  improvenent,  filing  must  be  made 
within  sixty  days  from  the  receipt  of  such  plat  at  the  district  office ;  and 
where  the  improvements  shall  have  been  made  prior  to  the  expiration  of 
three  months  from  the  third  day  of  March,  eighteen  hundred  and  seventy- 
three,  sixty  days  from  the  expiration  of  such  three  months  shall  be  allowed 
for  the  filing  of  a  declaratory  statement,  and  no  sale  under  the  provisions 
of  this  section  shall  be  allowed  until  the  expiration  of  six  months  from 
the  third  day  of  March,  eighteen  hundred  and  seventy-three. — Sec.  3,  Id. 


656  COAL  LANDS. 

Entry  Limited. 

Sec.  2350. — The  three  preceding  sections  shall  be  held  to  authorize  only 
one  entry  by  the  same  person  or  association  of  persons;  and  no  associa- 
tion of  persons  any  member  of  which  shall  have  taken  the  benefit  of  such 
sections,  either  as  an  individual  or  as  a  member  of  any  other  association, 
shall  enter  or  hold  any  other  lands  under  the  provisions  thereof;  and  no 
member  of  any  association  which  shall  have  taken  the  benefit  of  such 
sections  shall  enter  or  hold  any  other  lands  under  their  provisions ;  and  all 
persons  claiming  under  section  twenty-three  hundred  and  forty -eight  shall 
be  required  to  prove  their  respective  rights  and  pay  for  the  lands  filed 
upon  within  one  year  from  the  time  prescribed  for  filing  their  respective 
claims ;  and  upon  failure  to  file  the  proper  notice,  or  to  pay  for  the  land 
within  the  required  period,  the  same  shall  be  subject  to  entry  by  any 
other  qualified  applicant. — See.  4,  Id. 

A  corporation  having  purchased  lands  previously  patented 
has  not  "taken  the  benefit"  as  those  words  are  used  in  this 
section  so  as  to  prevent  its  stockholders  entering  other  lands. 
—Northern  Colo.  Co.  v.  U.  8.,  234  P.  34. 

Conflicting  Claims. 

Sec.  2351. — In  case  of  conflicting  claims  upon  coal  lands  where  the 
improvements  shall  be  commenced,  after  the  third  day  of  March,  eighteen 
hundred  and  seventy-three,  priority  of  possession  and  improvement,  fol- 
lowed by  proper  filing  and  continued  good  faith,  shall  determine  the 
preference-right  to  purchase.  And  also  where  improvements  have  already 
been  made  prior  to  the  third  day  of  March,  eighteen  hundred  and  seventy- 
three,  division  of  the  land  claimed  may  be  made  by  legal  subdivisions,  to 
include,  as  near  as  may  be,  the  valuable  improvements  of  the  respective 
parties.  The  Commissioner  of  the  General  Land  Oflice  is  authorized  to 
issue  all  needful  rules  and  regulations  for  carrying  into  effect  the  pro- 
visions of  this  and  the  four  preceding  sections. — Sec.  5,  Id. 

Vested  Rights — Lodes  and  Placers  Excepted. 

Sec.  2352. — Nothing  in  the  five  preceding  sections  shall  be  construed 
to  destroy  or  impair  any  rights  which  may  have  attached  prior  to  the 
third  day  of  March,  eighteen  hundred  and  seventy-three,  or  to  authorize 
the  sale  of  lands  valuable  for  mines  of  gold,  silver,  or  copper. — Sec.  6,  Id. 

The  department  holds  that  the  sections  above  printed  only 
fix  the  minimum  per  acre  and  that  it  may  arbitrarily  increase 
the  price  without  limit.— 40  L.  D.  610. 


COAL  LANDS.  657 

Coal  lands  are  classified  as  to  prices  by  grade  of  the  fuel  and 
size  of  veins  by  37  L.  D.  653,  681,  and  38  L.  D.  181. 

A  special  survey  of  township  containing  coal  lands  is  pro- 
vided for  by  28  St.  L.  423. 

Coal  lands  are  mineral  lands  which  it  has  been  the  policy  of 
the  government  to  reserve  out  of  railroad  grants. — United 
States  v.  N.  Pac.  Ey.,  170  F.  498. 

A  party  prospecting  for  coal  on  U.  S.  land  has  the  right  to 
mine  and  sell  the  coal  and  is  not  a  trespasser. — Ghost  v.  United 
States,  168  F.  841,  94  C.  C.  A.  253. 

Where  coal  is  discovered  on  land  after  selection  by  an  agri- 
cultural claimant  but  before  his  rights  become  vested  he  may 
go  to  patent  for  the  surface,  the  government  reserving  the  coal. 
—35  Stat.  L.  844.  For  circulars  to  this  act  see  37  L.  D.  528, 
38  L.  D.  183. 

Coal  lands  are  mineral  and  title  can  not  be  acquired  under 
the  Homestead  Act. — Washington  Co.  v.  United  States,  194  F. 
59,  114  C.  C.  A.  79,  234  U.  S.  76,  34  Sup.  Ct.  Rep.  725,  50 
L.  Ed.  1220.  But  the  homestead  entry  is  valid  where  there 
was  not  full  proof  of  coal  value.  Even  outcrops  are  not  abso- 
lute proof.— United  States  v.  Kostelak,  207  F.  447.  But  out- 
crops were  considered,  and  even  general  reputation,  in  United 
States  v.  Diamond  Co.,  191  F.  786,  112  C.  C.  A.  272;  Diamond 
Co.  v.  United  States,  233  U.  S.  236,  34  Sup.  Ct.  Rep.  507,  58 
L.  Ed.  936;  Milner  v.  United  States,  228  F.  431. 

The  geological  formation  and  surface  indications  and  neigh- 
boring discoveries  are  all  to  be  considered  in  determining  the 
fact  of  coal  value.— 41  L.  D.  639. 

Land  office  procedure  in  coal  land  entries  considered  with 
relation  to  valuation  and  failure  to  make  prompt  proof  and 
payment. — 41  L.  D.  661. 

The  latest  land  office  regulations  under  the  Coal  Act  are 
found  in  35  L.  D.  665,  684,  36  L.  D.  192,  318,  368,  41  L.  D.  416, 
42  L.  D.  170. 

Reaching  coal  by  instroke  from  adjoining  colliery  is  opening 
and  improving  within  the  meaning  of  the  coal  land  law. — 41 
L.  D.  21. 


d58  TIMBER  AND  STONE  ACT.  t 

A  second  coal  filing  by  the  same  party  may  be  made  where 
the  failure  to  perfect  the  first  is  sufficiently  excused. — 41  L.  D. 
337.  Otherwise  when  no  such  excuse  is  proved. — 41  L.  D.  177. 

Severance  of  Surface  and  Coal  Title. 

By  A.  C.  of  March  3,  1909,  it  was  enacted  that  coal  lands 
could  be  entered  by  an  agricultural  claimant,  his  entry  to 
reserve  the  coal  to  the  United  States.— 35  Stat.  L.  844.  This 
was  supplemented  by  A.  C.  of  June  22,  1910,  36  Stat.  L.  583. 

The  coal  claimant  can  enter  upon  such  land  upon  giving 
bond. approved  by  the  Secretary  of  the  Interior. 

Under  these  acts  a  severance  of  title  takes  place,  one  owning 
the  surface  and  another  the  coal,  and  applications  for  each 
title  may  apparently  proceed  at  the  same  time.  In  36  L.  D. 
179  is  found  an  attempt  of  the  land  office  to  formulate  proce- 
dure under  the  acts. 

Patents  for  coal  lands  obtained  by  a  fraudulent  combination 
to  obtain  more  land  than  the  government  allows  to  a  single 
section,  or  where  coal  lands  have  been  patented  as  a  homestead 
will  be  set  aside.  And  corporations  composed  largely  of  the 
guilty  parties  taking  title  are  not  innocent  purchasers. — 
United  States  v.  Allen,  180  F.  855 ;  Washington  Co.  v.  United 
States,  194  F.  59, 114  C.  C.  A.  79 ;  Wilson  Co.  v.  United  States, 
188  F.  545, 110  C.  C.  A.  343. 


TIMBER  AND  STONE  ACT. 


Lands  Chiefly  Valuable  for  Timber  or  Stone. 

That  surveyed  public  lands  of  the  United  States  within  the  "public  land 
States,  not  included  within  military,  Indian,  or  other  reservations  of  the 
United  States,  valuable  chiefly  for  timber,  but  unfit  for  cultivation,  and 
which  have  not  been  offered  at  public  sale  according  to  law,  may  be  sold 
to  citizens  of  the  United  States,  or  persons  who  have  declared  their  inten- 
tion to  become  such,  in  quantities  not  exceeding  one  hundred  and  sixty 
acres  to  any  one  person  or  association  of  persons,  at  the  minimum  price 
of  two  dollars  and  fifty  cents  per  acre;  and  lands  valuable  chiefly  for 
Btone  may  be  sold  on  the  same  terms  as  timber  lands. 


TIMBER  AND  STONE  ACT.  659 

Mining  Claims  Excepted. 

Provided,  That  nothing  herein  contained  shall  defeat  or  impair  any 
bona  fide  claim  under  any  law  of  the  United  States,  or  authorize  the  sale 
of  any  mining  claim,  or  the  improvements  of  any  bona  fide  settler,  or 
lands  containing  gold,  silver,  cinnabar,  copper,  or  coal>  or  lands  selected  by 
the  said  States  under  any  law  of  the  United  States  donating  lands  for 
internal  improvements,  education,  or  other  purposes.  (A  further  proviso 
follows  saving  ditch  and  water  rights.)  Sec.  1,  Act  of  June  3,  1878, 
amended  August  4,  1892.  Comp.  Laws  p.  1545,  20  St.  L.  89,  27  St.  L.  348. 

Duplicate  Statements  Required. 

See.  2. — That  any  person  desiring  to  avail  himself  of  the  provisions  of 
this  act  shall  file  with  the  register  of  the  proper  district  a  written  state- 
ment in  duplicate,  one  of  which  is  to  be  transmitted  to  the  General  Land 
Office,  designating  by  legal  subdivisions  the  particular  tract  of  land  he 
desires  to  purchase,  setting  forth  that  the  same  is  unfit  for  cultivation, 
and  valuable  chiefly  for  its  timber  or  stone;  that  it  is  uninhabited; 
contains  no  mining  or  other  improvements,  except  for  ditch  or  canal 
purposes,  where  any  such  do  exist,  save  such  as  were  made  by  or  belong 
to  the  applicant,  nor,  as  deponent  verily  believes,  any  valuable  deposit  of 
gold,  silver,  cinnabar,  copper,  or  coal;  that  deponent  has  made  no  other 
application  under  this  act;  that  he  does  not  apply  to  purchase  the  same 
on  speculation,  but  in  good  faith  to  appropriate  it  to  his  own  exclusive 
use  and  benefit;  and  that  he  has  not,  directly  or  indirectly,  made  any 
agreement  or  contract,  in  any  way  or  manner,  with  any  person  or  persons 
whatsoever,  by  which  the  title  which  he  might  acquire  from  the  govern- 
ment of  the  United  States  should  inure,  in  whole  or  in  part,  to  the  benefit 
of  any  person  except  himself;  which  statement  must  be  verified  by  the 
oath  of  the  applicant  before  the  register  or  the  receiver  of  the  land  office 
within  the  district  where  the  land  is  situated.* 

Sale  to  Bona  Fide  Purchaser. 

And  if  any  person  taking  such  oath  shall  swear  falsely  in  the  premises, 
he  shall  be  subject  to  all  the  pains  and  penalties  of  perjury,  and  shall 
forfeit  the  money  which  he  may  have  paid  for  said  lands,  and  all  right 
and  title  to  the  same; 

And  any  grant  or  conveyance  which  he  may  have  made,  except  in  the 
hands  of  bona  fide  purchasers,  shall  be  null  and  void. — Sec.  2,  Id. 


*An  Act  of  1904,  33  St.  L.  59,  makes  special  provision  for  verification 
of  the  forms  under  the  act  and  making  proofs  outside  the  land  district. 


660  TIMBEB  AND  STONE  ACT. 

Publication. 

Sec.  3. — That  upon  the  filing  of  said  statement,  as  provided  in  the 
second  section  of  this  act,  the  register  of  the  land  office  shall  post  a 
notice  of  such  application,  embracing  a  description  of  the  land  by  legal 
subdivisions,  in  his  office,  for  a  period  of  sixty  days,  and  shall  furnish 
the  applicant  a  copy  of  the  same  for  publication,  at  the  expense  of  such 
applicant,  in  a  newspaper  published  nearest  the  location  of  the  premises, 
for  a  like  period  of  time. 

Proofs. 

And  after  the  expiration  of  said  sixty  days,  if  no  adverse  claim  shall 
have  been  filed,  the  person  desiring  to  purchase  shall  furnish  to  the 
register  of  the  land  office  satisfactory  evidence,  first,  that  said  notice  of 
the  application  prepared  by  the  register  as  aforesaid  was  duly  published 
in  a  newspaper  as  herein  required;  secondly,  that  the  land  is  of  the 
character  contemplated  in  this  act,  unoccupied  and  without  improvements, 
other  than  those  excepted,  either  mining  or  agricultural,  and  that  it 
apparently  contains  no  valuable  deposits  of  gold,  silver,  cinnabar,  copper, 
or  coal; 

Right  to  Enter. 

And  upon  payment  to  the  proper  officer  of  the  purchase  money  of  said 
land,  together  with  the  fees  of  the  register  and  the  receiver,  as  provided 
for  in  case  of  mining  claims  in  the  twelfth  section  of  the  act  approved 
May  tenth,  eighteen  hundred  and  seventy-two,  the  applicant  may  be  per- 
mitted to  enter  said  tract,  and,  on  the  transmission  to  the  General  Land 
Office  of  the  papers  and  testimony  in  the  ease,  a  patent  shall  issue  thereon. 

Protest  and  Appeal. 

Provided,  That  any  person  having  a  valid  claim  to  any  portion  of  the 
land  may  object,  in  writing,  to  the  issuance  of  a  patent  to  lands  so  held 
by  him,  stating  the  nature  of  his  claim  thereto;  and  evidence  shall  be 
taken,  and  the  merits  of  said  objection  shall  be  determined  by  the  officers 
of  the  land  office,  subject  to  appeal,  as  in  other  land  cases. 

Effect  shall  be  given  to  the  foregoing  provisions  of  this  act  by  regula- 
tions to  be  prescribed  by  the  Commissioner  of  the  General  Land  Office. 
—Sec.  3,  Id. 

The  original  act  was  confined  to  certain  States,  and  the  above 
act  is  the  law  as  it  now  reads  extended  to  all  "public  land" 
States.  Unsurveyed  lands  can  not  be  entered  under  this  act. 
—36  L.  D.  268. 


TIMBER  AND  STONE  ACT.  661 

The  procedure  is  governed  by  regulations  of  the  department, 
January  2,  1914,  found  in  43  L.  D.  37.  The  regulations 
require  the  filing  of  duplicate  statements,  as  prescribed  in  the 
second  section  of  the  act.  The  statement  must  also  show  the 
applicant's  belief  as  to  the  value  of  the  land  and  his  estimate, 
and  value  of  the  timber.  A  fee  of  $10  must  accompany  the 
application.  The  land  is  then  appraised  by  an  employee  of 
the  government,  and  a  notice  of  the  appraised  value  is  given  to 
the  applicant,  who  must  within  30  days  after  notice  pay  to  the 
register  and  receiver,  such  appraised  value.  Advertisement 
and  posting  for  60  days  are  done  as  required  by  the  third  sec- 
tion, and  at  the  completion  of  the  60  days,  proof  of  publication 
is  filed,  and  the  applicant  makes  final  proof,  by  himself  and 
two  witnesses  at  the  land  office,  or  before  the  officer  before 
whom  it  is  to  be  offered,  that  the  land  is  of  the  character  in 
detail  as  described  in  the  above  first  section,  whereupon  final 
entry  is  allowed  and  patent  issues  in  due  time. 

Provision-  is  also  made  that  if  the  applicant  is  not  satisfied 
with  the  appraisement,  he  may,  at  his  own  expense,  have  the 
land  re-appraised  by  a  government  officer. 

If  the  land  department  fails  to  appraise  the  land  within  nine 
months  from  the  date  of  application,  the  applicant  may  within 
thirty  days  deposit  the  amount  named  in  his  application  as 
the  value  of  the  land  and  timber,  and  thereupon  proceed  with 
his  application  as  though  appraisement  had  been  made. 

The  same  procedure  applies  to  applications  for  land  chiefly 
valuable  for  stone.  Blanks  and  instructions  for  such  entries 
are  furnished  on  request  by  any  local  land  office. 

The  meaning  of  the  phrase  in  section  2  "That  he  does  not 
apply  to  purchase  the  same  on  speculation,"  is  construed  in 
United  States  v.  Budd,  144  U.  S.  154,  12  Sup.  Ct.  Rep.  575, 
36  L.  Ed.  384;  United  States  v.  Detroit  L.  Co.,  200  U.  S.  321, 
26  Sup.  Ct.  Rep.  282,  50  L.  Ed.  499;  Hawley  v.  Dillcr,  178 
U.  S.  476,  20  Sup.  Ct.  Rep.  986,  44  L.  Ed.  1157,  42  L.  D.  440. 

An  entry  made  in  good  faith,  though  with  the  expectation  of 
profiting  by  a  sale  of  the  land,  is  not  a  "speculation." — 32 
L.  D.  349. 


662  TIMBER  AND  STONE  ACT. 

Until  final  proof  and  payment  are  made  the  land  may  be 
withdrawn  under  the  reclamation  act. — 36  L.  D.  18. 

The  Land  Department  has  repeatedly  held  that  the  affidavit 
required  must  be  based  upon  personal  examination  of  the  land. 
—32  L.  D.  606,  Id.  631,  40  L.  D.  85,  42  L.  D.  437,  and  in  37 
L.  D.  582  is  printed  the  case  In  re  Ness  by  the  Court  of  Appeals 
of  the  District  of  Columbia  to  the  same  effect,  but  the  case  of 
Robnett  v.  United  States,  169  F.  778,  95  C.  C.  A.  244,  holds 
distinctly  to  the  contrary. 

The  purchase  money  may  be  borrowed  and  secured  by  mort- 
gage on  the  land. — 34  L.  D.  133.  But  no  mortgage  or  convey- 
ance should  be  made  before  entry  and  payment  as  the 
department  may  require  a  non-alienation  affidavit  at  any  time 
before  receiver's  receipt  issues. 

In  a  contest  between  a  timber  entry  and  an  agricultural 
claim  the  former  must  show  that  the  land,  as  a  whole,  is  sub- 
stantially unfit  for  cultivation.— 35  L.  D.  498. 

The  fact  that  the  land  will  be  fit  for  cultivation  after  the 
timber  is  removed  does  not  exclude  it  from  entry  under  the 
timber  act.— United  States  v.  Budd,  144  U.  S.  154,  12  Sup.  Ct. 
Rep.  575,  36  L.  Ed.  384;  Thayer  v.  Spratt,  189  U.  S.  346, 
23  Sup.  Ct.  Rep.  576,  47  L.  Ed.  845. 

Abandoned  improvements  will  not  exclude  land  from  entry 
under  the  Timber  and  Stone  Act.— 38  L.  D.  335. 

A  legal  subdivision  found  to  be  not  within  the  Timber  and 
Stone  Act  may  be  cut  out  even  after  entry. — 39  L.  D.  359. 

Land  covered  with  timber  suitable  for  mining  uses  is  within 
the  act. — 39  L.  D.  577.  Otherwise  as  to  scrub  timber. — 44 
L.  D.  129. 

Scope  of  evidence  admissible  in  trial  of  conspiracy  case  for 
taking  up  land  under  the  Timber  and  Stone  Act. — Van  Gesner 
v.  United  States,  153  F.  46,  82  C.  C.  A.  180.  The  act  is  further 
construed  in  United  States  v.  Biggs,  211  U.  S.  507,  29  Sup.  Ct. 
Rep.  181,  53  L.  Ed.  305;  United  States  v.  Sullenberger,  211 
U.  S.  522,  29  Sup.  Ct.  Rep.  186,  53  L.  Ed.  311 ;  United  States 
v.  Freeman,  211  U.  S.  525,  29  Sup.  Ct.  Rep.  185,  53  L.  Ed.  311. 


TIMBER  ACT.  663 

The  decision  of  the  Land  Department  that  lands  are  subject 
to  entry  under  the  Timber  and  Stone  Act  is  final.— United 
States  v.  Primrose  Co.,  216  U.  S.  553. 

Where  coal  is  found  to  underlie  a  timber  and  stone  entry, 
the  applicant  must  accept  a  surface  patent. — 44  L.  D.  48. 

Timber  entries  are  not  within  the  operation  of  section  7  of 
the  Act  of  March  3,  1891,  providing  that  after  two  years  from 
date  of  entry,  patent  shall  issue  where  there  is  no  pending 
contest ;  and  the  Secretary  of  the  Interior  can  not  be  compelled 
by  mandamus  to  issue  a  timber  and  stone  patent. — 37  L.  D.  564. 

The  filing  of  one  application  exhausts  applicant's  rights. — 37 
L.  D.  145.  But  otherwise  when  there  was  good  excuse  for  not 
perfecting  the  first  application. — 44  L.  D.  539. 

If  he  die  before  final  proof  his  heirs  can  not  perfect  the 
application.— 37  L.  D.  161. 

If  the  applicant  die  after  proof,  patent  issues  to  his  heirs 
generally.— 36  L.  D.  248. 

See  Building  Stone  Act,  p.  653. 


TIMBER  ON  MINERAL  LANDS. 


Timber  Free  to  Miners. 

That  all  citizens  of  the  United  States  and  other  persons,  "bona  fide 
residents  of  the  State  of  Colorado,  or  Nevada,  or  either  of  the  Territories 
of  New  Mexico,  Arizona,  Utah,  Wyoming,  Dakota,  Idaho,  or  Montana, 
and  all  other  mineral  districts  of  the  United  States,  shall  be,  and  are 
hereby,  authorized  and  permitted  to  fell  and  remove,  for  building,  agri- 
cultural, mining,  or  other  domestic  purposes,  any  timber  or  other  trees 
growing  or  being  on  the  public  lands,  said  lands  being  mineral,  and  not 
subject  to  entry  under  existing  laws  of  the  United  States,  except  for 
mineral  entry,  in  either  of  said  States,  Territories,  or  districts  of  which 
such  citizens  or  persons  may  be  at  the  time  bona  fide  residents,  subject  to 
such  rules  and  regulations  as  the  Secretary  of  the  Interior  may  prescribe 
for  the  protection  of  the  timber  and  of  the  undergrowth  growing  upon 
such  lands,  and  for  other  purposes:  Provided,  The  provisions  of  this  act 
shall  not  extend  to  railroad  corporations. — June  3,  1878.  20  St.  I,.  8S. 

The  above  printed  act  and  Act  of  1881,  26  Stat.  L.  1093, 
allows  the  department  to  restrict  the  right  by  regulations.— 
42  L.  D.  30,  Id.  22,  Id.  163. 


664  TIMBER  ACT. 

The  right  to  cut  timber  under  the  Act  of  June  3,  1878,  20 
Stat.  L.  88,  is  confined  to  lands  valuable  for  minerals,  strictly 
construed,  and  does  not  apply  to  adjoining  lands. — United 
States  v.  Plowman,  216  U.  S.  372,  30  Sup.  Ct.  Rep.  299,  54 
L.  Ed.  523.  Overruling  the  prior  case  of  United  States  v.  Basic 
Co.,  121  F.  504,  57  C.  C.  A.  624,  to  the  contrary. 

A  foreign  corporation  is  not  a  "resident"  authorized  to  cut 
timber.— 39  L.  D.  80. 

The  above  is  the  act  now  in  force.  The  Acts  of  1891  and 
1893,  26  St.  L.  1093,  27  Id.  244,  are  a  repetition  of  its  pro- 
visions as  to  certain  States  and  Territories.  The  acts  are 
construed  by  circulars  found  in  29  L.  D.  571,  572,  36  L.  D.  73, 
and  37  L.  D.  492,  superseding  all  prior  regulations.  The  Act 
of  1878  is  reprinted  in  44  L.  D.  257. 

These  circulars  contain  the  "regulations"  mentioned  in  the 
act  which  are  material,  because  the  burden  of  proof  is  on  the 
timber  cutter  to  show  compliance  with  them. — United  States  v. 
Basic  Co.,  121  F.  504,  57  C.  C.  A.  624. 

Under  the  act  above  printed  timber  may  be  cut  on  mineral 
lands  for  purposes  of  sale  or  for  roasting  ores — nor  can  the 
Secretary  by  regulation  prohibit  cutting  for  such  purposes. — 
United  States  v.  Rossi,  133  F.  380,  66  C.  C.  A.  442;  United 
States  v.  United  Verde  Co.,  196  U.  S.  207,  25  Sup.  Ct.  Rep.  222, 
49  L.  Ed.  449. 

Using  timber  for  smelting  purposes  is  within  the  terms  of 
the  Act  of  1891. — 34  L.  D.  78.  Also  for"  constructing  electric 
light  plants,  bridges  and  flumes  by  city  or  county. — Id.  112. 

Proof  of  panning  colors  is  not  enough  to  prove  that  the  land 
is  mineral  so  as'to  justify  timber  cutting. — Anderson  v.  United 
States,  152  F.  87,  81  C.  C.  A.  311.  A  purchaser  of  timber  cut 
by  trespass  can  not  defend  on  his  good  faith.  He  can  not  have 
a  better  title  than  his  vendor. — Id. 

The  department  formerly  held  that  the  above  act  applied 
to  all  "mineral  districts. "—29  L.  D.  349.  But  in  view  of  the 
decisions  in  United  States  v.  Smith,  11  F.  487,  8  Sawy.  100; 
United  States  v.  Benjamin,  21  F.  285;  United  States  v.  Eng- 


OIL  AND  GAS.  CG5 

lish,  107  F.  867,  and  United  States  v.  Price  Co.,  109  F.  239,  48 
C.  C.  A.  331,  which  hold  to  the  contrary,  it  now  rules  that  the 
act  does  not  apply  to  any  State  or  Territory  not  specifically 
mentioned.— 38  L.  D.  75. 

The  timber  on  government  mineral  land  is  free  to  all  citizens 
for  any  proper  purpose  and  the  mineral  character  may  be 
established  without  the  existence  of  a  paying  mine.  And  even 
if  such  character  is  not  proved,  a  party  cutting  timber  in  good 
faith  is  liable  only  for  stumpage  value. — Morgan  v.  United 
States,  169  F.  242,  94  C.  C.  A.  518. 

Messinger  made  a  homestead  entry  on  which  he  cut  mining 
timber.  After  he  had  sold  the  stulls,  he  abandoned  the  entry, 
which  defendant  alleged  had  been  made  on  mineral  land. 
Defendant  was  held  for  full  value  of  the  stulls.  This  seems  a 
hard  case,  both  as  to  the  measure  of  damages  and  as  to  the 
original  alleged  trespass. — Bunker  Hill  Co.  v.  United  States, 
226  U.  S.  548,  33  Sup.  Ct.  Rep.  138,  57  L.  Ed.  345.  In  40  L.  D. 
518  and  43  L.  D.  106  a  more  moderate  rule  was  applied. 

Alaska. 

Section  11,  Act  of  1898,  30  St.  L.  414,  allows  free  use  of 
timber  to  miners  in  Alaska. 


OIL  AND  GAS. 

The  peculiar  physical  properties  of  these  substances  have  led 
to  decisions  concerning  their  relations  to  asserted  ownership 
and  possession  which  form  a  department  of  law  unique  in 
character,  interesting  to  the  student,  and  important  to  the 
proprietor. 

There  is  no  ancient  law  on  the  subject.  They  were  unknown 
in  the  United  States  except  as  natural  curiosities  until  the  first 
oil  well  was  sunk  at  Titusville,  Pennsylvania,  in  1859.  Natural 
gas  began  to  be  used  in  place  of  artificial  coal  gas  in  1872  at 


666  OIL  AND  GAS. 

Fairview,  Pennsylvania.  The  first  pipe  line  was  built  in  1886 
to  Pittsburg. 

Since  these  first  commercial  beginnings  both  substances  have 
been  found  in  immense  quantities  over  wide  areas  extending 
from  New  York  to  California,  and  from  the  Dominion  to 
Mexico.  There  are  breaks  in  the  continuity  of  the  districts  and 
they  are  broadly  distributed  into  "fields,"  some  of  them  of 
very  large  area,  with  considerable  dissimilarity  in  their  geolog- 
ical deposition. 

Petroleum  is  the  only  mineral  which  is  essentially  a  liquid, 
and  not  a  solid.  Quicksilver,  it  is  true,  at  ordinary  tempera- 
tures is  a  liquid,  but  it  is  not  found  in  nature  in  that  form. 
Mineral  water  is  a  liquid,  but  such  water  if  a  mineral  at  all  is 
probably  only  to  be  so  classed  under  peculiar  circumstances,  as 
where  parties  dealing  with  it  have  treated  it  as  such. 

Natural  gas,  as  its  name  necessitates,  is  matter  in  form 
neither  liquid  nor  solid,  and  is  doubtless  only  petroleum 
advanced  to  an  aerified  form,  though  the  relation  between  the 
liquid  and  the  gas  is  a  matter  upon  which  scientific  men  are 
not  wholly  agreed.  Certainly  they  are  so  closely  associated 
that  some  family  relationship  between  them  can  not  be  denied. 
An  analogous  instance,  but  not  a  perfect  analogy,  is  the  min- 
eral "salt,"  where  the  owner  on  sinking  might  strike  a  layer 
of  rock-salt,  or  he  might  find  a  stratum  impregnated  with 
water,  which  he  would  have  only  to  bring  to  surface  to  get 
the  same  value  by  evaporation. 

Are  Land  and  Minerals. 

That  both  gas  and  oil  are  minerals  has  been  almost  uni- 
formly decided  by  all  Courts  where  the  question  has  arisen, 
usually  in  the  instance  of  the  construction  of  a  deed  reserving 
"all  minerals. "—Murray  v.  Allred,  100  Tenn.  100,  66  Am.  St. 
Rep.  740,  39  L.  R.  A.  249,  43  S.  W.  355,  19  M.  R.  169 ;  Poe  v. 
Ulrey,  233  111.  56,  84  N.  E.  46;  In  re  Buffalo  N.  O.  Co.,  73 
F.  191. 

But  there  are  rulings  to  the  contrary  in  Ohio  and  Kentucky, 
and  especially  in  Pennsylvania. — Dctlor  v.  Holland,  57  Ohio 


OIL  AND  GAS.  G67 

St.  492,  40  L.  R.  A.  266,  49  N.  E.  690 ;  McKinney  Heirs  v.  Cen- 
tral Ky.  Co.,  134  Ky.  239,  20  Ann.  Gas.  934,  120  S.  W.  314; 
Dnnliam  v.  Kirkpatrick,  101  Pa.  36,  47  Am.  Rep.  696;  Preston 
v.  South  Penn.  Co.,  238  Pa.  301,  86  Atl.  203. 

Petroleum  and  natural  gas  are  "land."— Haskell  v.  Button, 
53  W.  Va.  206,  44  S.  E.  533. 

Petroleum  is  a  mineral  and  as  such  oil  lands  do  not  pass  in 
a  railroad  grant.— Burke  v.  Southern  Pac.  R.  R.  Co.,  234  U.  S. 
669,  34  Sup.  Ct.  Rep.  907,  58  L.  Ed.  1527. 

The  fact  that  these  minerals  are  liquid  or  gaseous,  that  is : 
Will  flow  like  water  to  fill  a  vacuum  or  find  a  level,  the  oil 
sinking  and  the  gas  rising,  has  suggested  the  comparison  of 
such  substances  to  game  or  animals  ferae  naturae,  which  today 
are  found  on  my  land,  and  tomorrow  may  have  crossed  the  line 
to  the  land  of  my  neighbor.  If  the  owner  finds  the  game  on  his 
land  and  kills  it,  then  and  only  then,  it  becomes  his  absolute 
property.  Following  up  the  analogy  came  its  application  to 
the  case  of  these  fugitive  minerals,  and  it  now  seems  to  be  the 
settled  law.  Beginning  possibly  with  the  case  of  Westmore- 
land Co.  v.  De  Witt,  130  Pa.  235, 18  Atl.  724,  5  L.  R.  A.  731,  it 
has  been  followed  in  an  unlimited  number  of  decisions,  so  that 
it  is  not  now  in  a  position  to  be  questioned. 

Deducing  propositions  of  law  from  fanciful  comparisons 
and  analogies  is  always  dangerous,  and  while  we  must  accept 
the  conclusions  now  reached,  it  seems  certain  that  the  Courts, 
which  first  started  upon  this  departure,  never  foresaw  the 
startling  consequences  which  have  been  found  to  follow  upon 
the  application  of  the  doctrine  to  the  many  varied  instances 
where  it  has  been  applied. 

The  alleged  reason  for  this :  the  fugitive  nature  of  liquid  and 
gaseous  minerals — assumes  a  peculiar  phase  in  the  attempt  to 
carry  it  further  by  legislation  forbidding  the  pumping  of 
mineral  waters. — Hathorn  v.  Natural  C.  G.  Co.,  128  App.  Div. 
33,  112  N.  Y.  Supp.  374,  60  Misc.  Rep.  341,  113  N.  Y.  Supp. 
458,  194  N.  Y.  326, 128  Am.  St.  Rep.  555,  16  Ann.  Gas.  989,  23 
L.  R.  A.  (N.  S.)  436,  87  N.  E.  504;  Lindsley  v.  Natural  C.  G. 


668  OIL  AND  GAS. 

Co.,  162  F.  954,  170  F.  1023,  220  U.  S.  61,  31  Sup.  Ct.  Rep. 
337,  55  L.  Ed.  369. 

We  will  endeavor  to  consider  some  of  these  applications 
under  the  subdivisions  which  naturally  suggest  themselves. 

No  Estate  in  the  Oil  or  Gas  Until  Found. 

The  first  proposition  to  which  this  line  of  reasoning  led  was 
that  neither  the  owner  of  the  surface  nor  his  lessee  has  any 
title  to  the  oil  or  gas  under  the  land  until  it  is  found,  or  found 
and  brought  to  surface.  So  far  as  the  idle  owner  is  concerned 
this  is  of  no  practical  importance,  and  when  he  sells  the  land 
his  grantee  succeeds  to  his  rights,  including  his  right  to  find 
and  sever  the  oil  and  gas. 

But  to  the  lessee  or  operating  owner  it  is  of  great  materiality, 
for  he  is  now  searching  for  the  oil,  but  has  no  ownership  in  it 
until  he  taps  or  finds  it.  Adjoining  lessees  are  in  the  same 
position,  and  whoever  is  first  to  find  it  gets  the  benefit  not 
only  of  what  was  originally  under  his  ground,  but  all  that 
flows  in  to  fill  the  vacuum  made  by  his  extraction  of  it. 

The  lessee  has  no  estate  in  the  oil  or  gas  until  actually  dis- 
covered in  his  well.— McNvsh  v.  Stone,  17  M.  R.  22,  152  Pa. 
457,  note ;  Venture  Co.  v.  Fretts,  152  Pa.  451,  25  Atl.  732,  17  M. 
R.  543 ;  Florence  Co.  v.  Orman,  19  Colo.  App.  79,  73  P.  628 ; 
Steelsmith  v.  Gartlan,  45  W.  Va.  27,  44  L.  R.  A.  107,  19  M.  R. 
315,  29  S.  E.  W8;Kolaclimj  v.  Gallreath,  26  Okla.  772.  110  P. 
902,  38  L.  R.  A.  (N.  S.)  451 ;  Rawlings  v.  Armel,  70  Kan.  778, 
79  P.  683. 

No  present  interest  passes  under  an  oil  and  gas  lease  until 
mineral  is  found. — Eeardsley  v.  Kan.  N.  G.  Co.,  78  Kan.  571, 
96  P.  859. 

As  a  necessary  sequence  to  this  ruling  it  is  held  that  an  oil 
lessee  can  not  maintain  ejectment  upon  his  papers  giving 
apparently  the  same  right  which  a  farm  tenant  would  have  to 
bring  such  action,  barring  the  case  where  he  lias  been  placed 
in  actual  possession  of  the  surface  and  been  ousted  therefrom. 
—Kelly  v.  Keys,  213  Pa.  295,  62  Atl.  911,  110  Am.  St.  Rep. 
547 ;  Kolacliny  v.  Galbreatli,  supra. 


OIL  AND  GAS.  669 

Lessee  who  has  never  been  in  possession  can  not  maintain 
ejectment.  No  title  vests  until  oil  or  gas  is  found. — Priddy  v. 
Thomas,  204  F.  955,  123  C.  C.  A.  277. 

But  a  lease  may  be  in  such  form  that  it  is  a  lease  "of  the 
land  itself,"  being  more  than  an  ordinary  "oil  lease,"  and 
discovery  of  oil  in  such  case  is  not  essential. — Kline  v.  Guar- 
anty 0.  Co.,  167  Gal.  476,  140  P.  1. 

Right  to  Pump  or  Force. 

If  the  owner  of  land  has  the  right  to  place  bait  to  lure  the 
game  to  cross  the  line  onto  his  land  (if  this  plan  of  reasoning 
by  analogy  is  to  be  followed),  then  the  owner  of  oil  land  has 
the  right  to  use  artificial  means  to  induce  the  oil  to  flow  on  his 
land.  Except  in  the  case  of  gushing  wells,  pumping  is  the  only 
means  by  which  the  lessee  or  proprietor  could  possibly  get, 
even  the  oil  which  is  already  under  his  land,  to  the  surface. 

This  to  us,  apparently,  self-evident  right,  came  before  the 
Pennsylvania  Supreme  Court  in  Westmoreland  Gas  Co.  v. 
DeWitt,  130  Pa.  235,  249,  5  L.  R.  A.  731,  18  Atl.  724,  which 
case  was  approved  and  followed  in  Jones  v.  Forest  Oil  Co.,  194 
Pa.  379,  48  L.  R.  A.  748,  44  Atl.  1074. 

But  to  the  contrary  is  Manufacturers  Co.  v.  Indiana  Co.,  155 
Ind.  461,  50  L.  R.  A.  768,  57  N.  E.  912,  20  M.  R.  672,  sustain- 
ing a  statute  which  forbade  the  owners  of  a  gas  well  to  reduce 
the  pressure. 

Exploding  the  Well. 

This  device,  used  constantly  in  certain  fields,  and  which  in 
an  almost  unaccountable  manner  so  often  increases  the  flow  of 
oil,  if  there  is  any  to  flow,  is  only  a  subdivision  of  the  previous 
head.  It  is  an  artificial  means  of  increasing  the  flow  of  oil 
through  the  operator's  well  to  the  surface,  whether  it  comes 
from  his  own  land  or  from  his  neighbor's,  and  if  he  has  the 
right  to  pump  -at  all,  it  follows  as  a  corollary  that  he  has  the 
right  to  explode  his  well,  and  this  has  not  been  successfully 
denied.— Peoples  Gas  Co.  v.  Tyner,  131  Ind.  277,  31  Am.  St. 
Rep.  433,  16  L.  R.  A.  443,  17  M.  R.  481,  31  N.  E.  59. 


670  OIL  AND  GAS. 

Wasting  the  Oil  or  Gas— Plugging  Wells. 

This  subhead  depends  upon  an  entirely  different  principle. 
Where  one  proprietor  seeks  to  obtain  what  some  contend  is 
his  unequal  share  of  the  values,  if  it  is  a  loss  to  others  it  is  at 
least  a  gain  to  himself.  But  where  he  allows  the  product  to 
go  to  waste  it  is  a  useless  destruction  of  the  common  property, 
and  laws  forbidding  it  have  been  uniformly  sustained. — Ohio 
Oil  Co.  v.  Indiana  Co.,  177  U.  S.  190,  20  Sup.  Ct.  Rep.  576, 
44  L.  Ed.  729,  20  M.  R.  466 ;  State  v.  Ohio  Oil  Co.,  150  Ind.  21, 
49  N.  E.  809,  47  L.  R.  A.  627. 

The  lessor  has  a  right  of  action  against  his  lessee  for  allowing 
natural  gas  to  go  to  waste. — Talbott  v.  Southern  0.  Co.,  60 
W.  Va.  423,  55  S.  E.  1009;  Louisville  G.  Co.  v.  Kentucky  H. 
Co.,  132  Ky.  435,  111  S.  W.  374. 

An  action  will  lie  by  a  party  interested  in  the  common  field 
for  illegitimate  waste  of  the  gas. — Color  0.  &  G.  Co.  v.  Fran- 
zell,  128  Ky.  715,  36  L.  R.  A.  (N.  S.)  456, 109  S.  W.  328.  And 
punitive  damages  may  be  awarded  for  malicious  waste. — 
Louisville  G.  Co.  v.  Kentucky  H.  Co.,  132  Ky.  435,  111  S.  W. 
374. 

Consideration  of  the  rights  of  different  sets  of  lessees  to 
protection  against  waste  of  the  common  stock  by  each  other, 
under  the  Kentucky  statute. — Louisville  G.  Co.  v.  Kentucky 
H.  Co.,  117  Ky.  71,  111  Am.  St.  Rep.  225,  4  Ann.  Cas.  355, 
70  L.  R.  A.  558,  77  S.  W.  368. 

A  defendant  will  be  enjoined  from  pumping  mineral  water 
and  letting  it  run  to  waste  to  the  injury  of  an  adjoining  land 
owner,  who  was  using  and  bottling  the  water  on  his  own 
ground.— Gagnon  v.  French  Lick  Co.,  163  Ind.  687,  68  L.  R.  A. 
175,  72  N.  E.  849. 

A  statute  to  compel  the  plugging  of  natural  gas  wells  not  in 
use,  will  be  enforced. — Commonwealth  v.  Trent,  117  Ky.  34, 
4  Ann.  Cas.  209,  77  S.  W.  390. 

A  gas  well  will  not  be  enjoined  where  the  defendant  offers 
security  and  there  is  danger  that  the  gas  might  be  drained  by 
other  wells.— Henry  Gas  Co.  v.  United  States,  191  F.  132,  111 
C.  C.  A.  612. 


OIL  AND  GAS.  671 

Judicial  notice  will  be  taken  that  natural  gas  unlike  oil 
can  not  be  stored  to  await  a  market. — Eastern  Oil  Co.  v.  Couie- 
han,  65  W.  Va.  531,  64  S.  E.  836. 

Oil  and  Gas  Leases. 

By  far  the  greater  part  of  the  oil  and  gas  produced  is  by 
the  operation  of  leases. 

In  every  lease  there  are  two  sorts  of  covenants — the  express 
and  the  implied.  The  express  covenants  where  clearly  stated, 
interpret  themselves.  The  implied  covenants  do  not  appear  on 
the  face  of  the  paper,  and  are  often  not  anticipated  until  some 
question  arises  and  their  sometimes  serious  consequences 
appear. 

The  respective  rights  and  duties  of  both  parties  to  an  oil 
lease  are  fully  and  justly  stated  in  the  case  of  Indiana  Co.  v. 
McCrory,  42  Okl.  136,  140  P.  610. 

The  Express  Covenants  of  a  Lease  of  These  Minerals  Are 

usually :  To  sink ;  which  may  be  limited  as  to  the  depth  or  to 
the  amount  to  be  expended  or  until  some  certain  stratum  is 
reached  without  pay,  and  in  further  detail  it  may  give  the  size 
of  the  bore  and  kind  of  casing. 

To  pay  rental :  This  is  usually  not  large,  but  frequently  is 
scattered  over  limited  periods  in  the  nature  of  payments  for 
delay. 

To  pay  royalty :  How  this  is  reserved  depends  upon  whether 
there  is  a  convenient  pipe  line  or  whether  it  is  a  mere  prospect- 
ing adventure,  and  in  general  by  the  fact  as  to  whether  it  is 
on  ground  reasonably  certain  to  be  productive  or  on  ground 
which  has  made  no  promises  to  its  explorers. 

To  so  operate  as  not  to  prevent  use  of  surface  by  the  owner. 
Reserve  the  use  of  gas  to  the  lessor  if  his  dwelling  is  near  the 
premises,  and  like  use  of  oil  or  gas  to  the  tenant  for  fuel  at  the 
well  without  royalty. 

The  other  express  covenants  may  vary  indefinitely  and  the 
lease  should  not  be  drawn  except  by  an  attorney  of  experience 
in  this  line  of  drafting. 


672  OIL  AND  GAS. 

The  Implied  Covenants. 

The  covenants  implied  when  not  expressed  are :  To  start  to 
sink  promptly,  and  to  work  with  diligence,  and  the  most  subtle 
of  such  implied  covenants  is  the  doctrine  of  Protection. 

Diligence. 

"What  amounts  to  due  diligence  is  a  question  of  fact  for  the 
trial  Court.— Day  v.  Kansas  City  P.  L.,  87  Kan.  617, 125  P.  43. 

Protection. 

Protection  is  of  two  sorts: 

First — To  prevent  the  lessor  from  sinking  on  other  land  not 
covered  by  the  lease  so  as  to  save  the  lessee  from  being  drained 
in  case  he  makes  a  profitable  strike.  This  protection  must  be 
provided  for  in  the  lease,  because  it  is  not  an  implied  covenant, 
as  is  the  protection  which  the  landlord  claims. 

Second — To  protect  the  demised  land  where  strangers  have 
struck  oil  in  the  neighborhood  and  threaten  to  drain  the 
demised  ground.  This  sort  of  protection  has  been  forced  by 
judicial  construction  into  the  lease  for  the  alleged  safeguard- 
ing of  the  lessor  and  in  instances  it  has  been  carried  to  extreme 
lengths. 

Protection  to  Lessee. 

In  Allison's  Appeal,  11  Pa.  221,  11  M.  R.  142,  lessee  had 
been  granted  a  protection  of  ten  rods  on  the  east,  and  eight 
rods  on  the  north  side.  The  lot  demised  was  a  parallelogram, 
and  the  Court  held  that  the  protection  included  the  square  in 
the  northeast  corner  made  by  protracting  the  north  and  east 
lines  of  the  conceded  protection. 

Protection  to  the  Lessor. 

In  Colgan  v.  Forest  Oil  Co.,  194  Pa.  234,  75  Am.  St.  Rep. 
695,  20  M.  R.  338,  45  Atl.  119,  lessor  attempted  to  prove  that 
lessee  was  not  sufficiently  protecting  the  property.  Tie  was 
bound  by  covenant  to  sink  one  well  and  had  in  fact  put  down 


OIL  AND  GAS.  673 

five.  The  Court  held  that  he  had  the  right  to  use  his  own  judg- 
ment, and  that  it  was  only  in  cases  where  he-was  clearly  favor- 
ing one  lessor  to  the  loss  of  another  that  he  would  be  compelled 
to  sink  new  wells,  the  justice  of  which  ruling  seems  unques- 
tionable. 

Testator  owning  three  farms  gave  an  oil  lease  on  all  of  them. 
On  his  decease  the  three  farms  came  by  devise  to  his  three  chil- 
dren severally ;  the  only  oil  produced  was  on  one  of  the  three 
farms.  The  Court  decreed  that  the  royalties  should  be  divided 
equally  among  the  three  children. — Wettengel  v.  Gormley,  160 
Pa.  559,  47  Am.  St.  Rep.  733, 18  M.  R.  93,  28  Atl.  934. 

In  Kleppner  v.  Lemon,  the  doctrine  of  protection  was  car- 
ried far.  The  lessee  was  only  bound  in  terms  to  sink  one  well, 
which  he  had  done,  but  there  being  wells  on  two  sides  of  the 
demised  tract,  which  were  producing,  the  Court  compelled  the 
lessee  to  bind  himself  either  to  sink  another  well  or  forfeit  the 
entire  tract  except  the  first  well  with  a  limited  protection. — • 
176  Pa.  502,  18  M.  R.  404,  35  Atl.  109.— MITCHELL,  J.,  dis- 
sented. 

He  elected  not  to  sink  the  second  well,  and  the  litigation  being 
carried  on,  he  was  decreed  to  pay  full  royalty  on  all  of  the  oil 
taken  from  one  of  the  adjoining  tracts  on  which  he  held  a  lease, 
on  the  rule  of  damages  in  cases  of  confusion  of  goods  (197  Pa. 
430),  which  is  the  rule  applied  against  wilful  trespassers,  and 
amounted  to  judicial  confiscation.  But  on  rehearing '(198  Pa. 
581,  48  Atl.  483,  21  M.  R.  275)  this  was  modified  to  one-eighth 
of  such  royalty.  This  one-eighth  was  reached  by  comparison  of 
acreages. 

In  Northicestern  Ohio  N.  G.  Co.  v.  Ullery,  68  Ohio  St.  259, 
22  M.  R.  647,  67  N.  E.  494,  and  Rymer  v.  8.  Penn  Oil  Co.,  54 
W.  Ya.  530,  46  S.  E.  559,  the  doctrine  of  Wettengel  v.  Gormley 
is  expressly  disapproved. 

The  lessee  is  under  implied  covenant  to  sink  as  many  offset 
wells  as  due  diligence  and  care  would  suggest  to  protect  the 
leased  land.— Guffey  Pet.  Co.  v.  Jeff  Chaison  Townsite  Co.,  48 
Tex.  Civ.  555,  107  S.  "W.  60;  Highfield  Co.  v.  Kirk,  248  Pa.  19, 
93  Atl.  815. 


«74  OIL  AND  GAS. 

In  Harris  v.  Ohio  Oil  Co.,  the  Supreme  Court  of  Ohio  recog- 
nized the  rule  of  the  implied  covenant  to  protect  lessor,  but 
refused  to  forfeit  the  lease  for  failure  to  sink,  holding  that 
there  can  be  no  forfeiture  for  breach  of  an  implied  covenant. — 
57  Ohio  St.  118,  48  N.  E.  502, 19  M.  R.  157 ;  Doddridge  0.  &  G. 
Co.  v.  Smith,  154  F.  970. 

The  only  remedy  the  owner  of  land  adjoining  has  against 
drainage  of  the  oil  under  the  property  is  to  drill  a  well  on  his 
own  land;  but  a  lessee  of  two  adjoining  tracts  can  not  drain 
the  oil  from  one  to  the  detriment  of  the  other. — Barnard  v. 
Monongahela  N.  0.  'Co.,  216  Pa.  362,  65  Atl.  801.  And  in  Cul- 
bertson  v.  lola  Co.  the  lessee  was  held  for  drawing  the  gas  by 
wells  on  other  ground.— 87  Kan.  529,  Ann.  Gas.  1914A,  610, 
125  P.  81. 

The  lessee  will  not  be  allowed,  arbitrarily,  to  choose  locations 
for  drilling  wells  in  disregard  of  the  rights  of  the  land  owner 
where  equally  good  locations  are  available. — Gillespie  v.  Ameri- 
can Zinc  Co.,  247  Pa.  222,  93  Atl.  272. 

Where  a  lessee  had  drilled  one  well  and  evinced  no  intention 
to  protect  his  lessor  by  sinking  other  wells,  he  was  decreed  to 
have  abandoned  all  interest  in  the  lease,  except  the  one  well 
and  sufficient  curtilage  to  protect  it. — Highfield  Co.  v.  Kirk, 
248  Pa.  19,  93  Atl.  815. 

Form  of  Lease. 

THIS  INDENTURE,  made  this  -first  day  of  May,  in  the  year  of  our  Lord 
one  thousand  nine  hundred  and  sixteen,  between  Ealph  Benedict,  of 
Denver,  State  of  Colorado,  lessor,  and  G.  L.  Warson,  of  the  same  place, 
lessee  or  tenant:  Witnesseth,  that  the  said  lessor,  for  and  in  considera- 
tion of  the  royalties  hereinafter  reserved  and  the  covenants  and  agree- 
ments hereinafter  expressed,  and  by  the  said  lessee  to  be  kept  and 
performed,  hath  granted,  demised  and  let  and  by  these  presents  doth 
grant,  demise  and  let  unto  the  said  lessee  all  the  following  described  real 
estate  situate  in  the  County  of  Fremont,  State  of  Colorado,  to-wit :  The 
northeast  quarter  of  Section  1,  Township  70  South,  Range  19  West  of  the 
6th  P.  M.,  containing  160  acres.  Always  saving,  reserving  and  excepting 
to  the  lessor  the  surface  and  the  use  of  the  surface  for  agricultural  and 
residence  purposes. 


OIL  AND  GAS.  675 

To  HAVE  AND  TO  HOLD  unto  the  said  lessee  for  the  term  of  two  years 
from  date  hereof  and  thereafter  as  long  as  oil  or  gas  is  found  in  paying 
quantities. 

And  in  consideration  of  such  demise  the  said  lessee  doth  covenant  and 
agree: 

1.  To  sink  at  least  one  well  on  the  demised  ground  to  the  distance  of  at 
least  one  thousand  feet  unless  oil  or  gas  is  found  within  a  shorter  distance. 

2.  And  to  complete  such  sinking  within  six  months  from  the  date  of 
this  lease. 

3.  In  default  of  the  completion  of  the  well  to  the  depth  aforesaid  or 
until  oil  or  gas  is  found  as  aforesaid  this  lease  shall  at  the  option  of  the 
lessor  become  null  and  void  and  the  demised  premises  shall  become  forfeit 
to  the  lessor:     Provided  ahvays,  That  the  payment  of  $100  rent  before 
the  expiration  of  said  six  months  shall  allow  another  period  of  six  months 
for  such  sinking. 

4.  To  deliver  as  royalty  to  said  lessor  one-eighth  part  of  all  oil  found 
in  and  saved  from  said  land. 

5.  In  case  gas  is  found  in  quantities  sufficient  to  pipe  or  market,  the 
lessee  shall  pay  to  the  lessor  $50  per  quarter  from  date  when  such  gas  is 
struck  in  the  well,  payable  on  the  last  day  of  each  quarter. 

6.  If  either  oil  or  gas  is  found  in  paying  quantities  the  lessee  will 
forthwith,  at  his  own  expense,  procure  and  place  on  the  premises  tanks, 
pipes  and  other  necessary  fixtures  to  economically  save  the  product  of 
such  well  and  deliver  its  product  to  the  buyer  or  carrier  of  the  same. 

7.  In  case  oil  is  found  in  paying  quantities  the  lessee  will  keep  correct 
books  of  account  showing  the  production  of  each  well  and  the  disposition 
of  the  proceeds  thereof,  which  books  shall  be  open  to  the  inspection  of  the 
lessor  or  his  agent  during  business  hours  at  all  reasonable  times. 

8.  To  deliver  upon  request  to  the  lessor  all  the  gas  he  may  require  for 
use  at  his  buildings,  or  outbuildings  on  the  premises,  service  pipes  and 
fixtures  to  utilize  the  same  being  furnished  by  the  lessor  and  kept  in 
repair  at  his  own  expense. 

9.  To  not  sink  any  well  within  one  hundred  feet  of  any  building  now 
erected  upon  the  premises,  and  to  occupy  with  any  well  including  its 
fixtures  (except  pipes)  not  more  than  one  square  acre. 

10.  To  bury  upon  request  of  the  lessor  all  oil  or  gas  pipes  used  to 
conduct  oil  or  gas  from  the  premises,  and  to  pay  all  damages  done  to 
timber  and  crops  by  reason  of  the  burying,  repairing,  or  removing  of 
pipe  lines  over  said  premises  except  on  the  square  acre  allowed  to  each 
well. 

11.  The  lessee  may  sink  as  many  wells  as  he  sees  fit,  paying  the  same 
royalty,  and  shall  have  the  right  to  subdivide  the  ground  into  lots  or 
tracts  and  to  sub-lease  the  whole  or  any  part  of  the  demised  premises; 


676  OIL  AND  GAS. 

and  all  fixtures  are  the  property  of  the  lessee  or  his  sub-lossocs  with  the 
right  to  remove  during  the  term  or  within  a  reasonable  time  thereafter. 

12.  Delivery  to  any  pipe  line  or  responsible  oil  buyer  of  the  lessor's 
proportion  of  the  products  of  the  well  with  instructions  to  pay  to  lessor 
his  one-eighth  of  the  gross  price  shall  be  full  compliance  with  the  above 
covenant  to  pay  royalty. 

13.  The  said  lessee  shall  have  the  right  to  use  free  of  charge,  all  oil 
and  gas  he  may  need  as  fuel,  and  shall  have  the  right  to  dig  a  surface 
well  for  water  for  his  engine. 

14.  In  case  oil  or  gas  is  struck  on  and  marketed  from  any  adjoining 
land  within  one  hundred  yards  of  the  exterior  boundary  of  the  demised 
tract  the  lessee  will  sink  a  well  or  wells  on  the  demised  tract  within  fifty 
feet   from   the   exterior   line   of   such   tract,    upon   written   request   and 
designation  by  the  lessor  of  the  point  or  points  at  which  any  such  well 
is  to  be  sunk,  unless  a  well  has  been  already  started  by  the  lessee  within 
two  hundred  yards  of  such  foreign  well. 

15.  The  lessor,  upon  his  part,  doth  covenant  and  agree  that  he  will 
not  sink  any  well  or  lease  any  ground  that  he  may  own  or  purchase  or 
control  within  two  hundred  yards  of  the  exterior  lines  of  the  demised 
tract. 

Each  and  every  clause  and  covenant  of  this  Indenture  shall  extend  to 
the  heirs,  executors,  administrators  and  lawful  assigns  of  all  parties 
hereto. 

In  witness  whereof,  the  said  parties  have  hereunto  set  their  hands  and 
seals.  EALPH  BENEDICT,  [SEAL.] 

G.  L.  WARSON.          [SEAL.] 

The  next  form  is  one  in  common  use  in  Oklahoma  and 
Wyoming  oil  fields. 

OIL  AND  GAS  LEASE. 

AGREEMENT,  Made  and  entered  into  the  fifth  day  of  September,  1916, 

by  and  between of party  of  the  first 

part,  hereinafter  called  lessor  (whether  one  or  more)  and  The  Producers 
Oil  Company,  party  of  the  second  part,  lessee. 

WITNESSETH,  That  the  said  lessor,  for  and  in  consideration  of  eight 
hundred  dollars,  cash  in  hand  paid,  receipt  of  which  is  hereby  acknowl- 
edged and  of  the  covenants  and  agreements  hereinafter  contained  on  the 
part  of  the  lessee  to  be  paid,  kept  and  performed,  has  granted,  demised, 
leased  and  let  and  by  these  presents  does  grant,  demise,  lease  and  let 
unto  the  said  lessee,  for  the  sole  and  only  purpose  of  mining  and 
operating  for  oil  and  gas,  and  laying  pipe  lines,  and  building  tanks, 
powers,  stations  and  structures  thereon  to  produce,  save  and  take  care  of 
said  products,  all  that  certain  tract  of  land  situate  in  the  County  of 


OIL  AND  GAS.  G77 

Ol-mulgee,  State  of  Oklahoma,  described  as  follows,  to-wit:  The  northeast 
quarter  of  Section  33,  Township  14  North,  Range  14  East,  and  containing 
160  acres,  more  or  less. 

It  is  agreed  that  this  lease  shall  remain  in  force  for  a  term  of  five 
years  from  this  date,  and  as  long  thereafter  as  oil  or  gas,  or  either  of 
them,  is  produced  from  said  land  by  the  lessee. 

In  consideration  of  the  premises  the  said  lessee  covenants  and  agrees: 

First — To  deliver  to  the  credit  of  lessor,  free  of  cost,  in  the  pipe  line 
to  which  he  may  connect  his  wells,  the  equal  one-eighth  part  of  all  oil 
produced  and  saved  from  the  leased  premises. 

Second — To  pay  the  lessor  one  hundred  dollars  each  year  in  advance, 
for  the  gas  from,  each  well  where  gas  only  is  found,  while  the  same  is 
being  used  off  the  premises,  and  lessor  to  have  gas  free  of  cost  from  any 
such  well  for  all  stoves  and  all  inside  lights  in  the  principal  dwelling 
house  on  said  land  during  the  same  time  by  making  his  own  connections 
with  the  wells  at  his  own  risk  and  expense. 

Third — To  pay  lessor  for  gas  produced  from  any  oil  well  and  used  off 
the  premises  at  the  rate  of  twenty  dollars  per  year,  for  the  time  during 
which  such  gas  shall  be  used,  said  payments  to  be  made  each  three  months 
in  advance. 

If  no  well  be  commenced  on  said  land  on  or  before  the  fifth  day  of 
September,  1917,  this  lease  shall  terminate  as  to  both  parties,  unless  the 
lessee  on  or  before  that  date  shall  pay  or  tender  to  the  lessor,  or  to  the 
lessor's  credit  in  the  Exchange  National  Bank  at  Tulsa,  Oklahoma,  or  its 
successors,  which  shall  continue  as  the  depository  regardless  of  changes 
in  the  ownership  of  said  land,  the  sum  of  one  hundred  and  sixty  dollars, 
which  shall  operate  as  a  rental  and  cover  the  privilege  of  deferring  the 
commencement  of  a  well  for  twelve  months  from  said  date.  In  like 
manner  and  upon  like  payments  or  tenders  the  commencement  of  a  \vHl 
may  be  further  deferred  for  like  period  of  the  same  number  of  months 
successively.  And  it  is  understood  and  agreed  that  the  consideration  first 
recited  herein,  the  down  payment,  covers  not  only  the  privileges  granted 
to  the  date  when  said  first  rental  is  payable  as  aforesaid,  but  also  the 
lessee's  option  of  extending  that  period  as  aforesaid,  and  any  and  all 
other  rights  conferred. 

Should  the  first  well  drilled  on  the  above  described  land'be  a  dry  hole, 
then,  and  in  that  event,  if  a  second  well  is  not  commenced  on  said  land 
within  twelve  months  from  the  expiration  of  the  last  rental  period  which 
rental  has  been  paid,  this  lease  shall  terminate  as  to  both  parties,  unless 
the  lessee  on  or  before  the  expiration  of  said  twelve  months  shall  resume 
the  payment  of  rentals  in  the  same  amount  and  in  the  same  manner  as 
hereinbefore  provided.  And  it  is  agreed  that  upon  the  resumption  of  the 
payment  of  rentals,  as  above  provided,  that  the  last  preceding  paragraph 


678  OIL  AND  GAS. 

hereof,  governing  the  payment  of  rentals  and  the  effect  thereof,  shall 
continue  in  force  just  as  though  there  had  been  no  interruption  in  the 
rental  payments. 

If  said  lessor  owns  a  less  interest  in  the  above  described  land  than  the 
entire  and  undivided  fee  simple  estate  therein,  then  the  royalties  and 
rentals  herein  provided  shall  be  paid  the  lessor  only  in  the  proportion 
which  his  interest  bears  to  the  whole  and  undivided  fee. 

Lessee  shall  have  the  right  to  use,  free  of  cost,  gas,  oil,  and  water 
produced  on  said  land  for  its  operations  thereon,  except  water  from  wells 
of  lessor. 

When  requested  by  lessor,  lessee  shall  bury  its  pipe  lines  below  plow 
depth. 

No  well  shall  be  drilled  nearer  than  200  feet  to  the  house  or  barn  now 
on  said  premises,  without  the  written  consent  of  the  lessor. 

Lessee  shall  pay  for  damages  caused  by  its  operations  to  growing  crops 
on  said  land. 

Lessee  shall  have  the  right  at  any  time  to  remove  all  machinery  and 
fixtures  placed  on  said  premises,  including  the  right  to  draw  and  remove 
casing. 

If  the  estate  of  either  party  hereto  is  assigned,  and  the  privilege  of 
assigning  in  whole  or  in  part  is  expressly  allowed — the  covenants  hereof 
shall  extend  to  their  heirs,  executors,  administrators,  successors  or  assigns, 
but  no  change  in  the  ownership  of  the  land  or  assignment  of  rentals  or 
royalties  shall  be  binding  on  the  lessee  until  after  the  lessee  has  been 
furnished  with  a  written  transfer  or  assignment  or  a  true  copy  thereof; 
and  it  is  hereby  agreed  in  the  event  this  lease  shall  be  assigned  as  to  a 
part  or  as  to  parts  of  the  above  described  lands  and  the  assignee  or 
assignees  of  such  part  or  parts  shall  fail  or  make  default  in  the  payment 
of  the  proportionate  part  of  the  rents  due  from  him  or  them,  such  default 
shall  not  operate  to  defeat  or  affect  this  lease  in  so  far  as  it  covers  a  part 
or  parts  of  said  lands  upon  which  the  said  lessee  or  any  assignee  thereof 
shall  make  due  payment  of  said  rental. 

Lessor  hereby  warrants  and  agrees  to  defend  the  title  to  the  lands 
herein  described,  and  agrees  that  the  lessee  shall  have  the  right  at  any 
time  to  redeem  for  lessor,  by  payment,  any  mortgages,  taxes  or  other  liens 
on  the  above  described  lands,  in  the  event  of  default  of  payment  by 
lessor,  and  be 'subrogated  to  the  rights  of  the  holder  thereof. 
'  In  witness  whereof,  the  said  parties  have  hereunto  set  their  hands  and 
seals. 

THE  PRODUCERS  OIL  COMPANY.     [SEAL.] 
By ,  President.     [SEAL.] 

Eroivn  v.  Wilson,  (Okla.)  163  P.  94,  contains  an  exhaustive 
review  of  the  varied  forms  of  oil  and  gas  leases. 


OIL  AND  GAS.  679 

For  forms  of  oil  and  gas  leases  which  have  been  adjudicated, 
see  Rose  v.  Lanyon  Zinc  Co.,  68  Kan.  126,  74  P.  625,  and  Pitts- 
burg  Co.  v.  Bailey,  76  Kan.  42,  12  L.  E.  A.  (N.  S.)  745,  90 
P.  803. 

Ren1^-Roy  alty— Consideration. 

The  reports  are  replete  with  cases  where  attempts  have  been 
made  to  attack  the  consideration  for  the  lease  and  to  hold  it 
void  where  the  original  consideration  can  be  shown  to  be  not 
more  than  nominal,  but  the  general  result  of  such  cases  is  that 
if  there  is  no  covenant, to  sink  or  no  time  fixed  for  completing 
a  well,  the  lease  is  not  void  for  want  of  any  binding  covenant 
against  the  lessee,  but  the  Court  will  read  into  the  contract  an 
implied  covenant  to  sink  and  allow  for  such  sinking  a  reason- 
able time,  and  that  payments  for  delay,  if  accepted,  are  a  good 
consideration,  but  the  cases  are  not  wholly  consistent  nor 
reconcilable  on  these  points. 

There  is  an  implied  covenant  in  every  oil  and  gas  lease  for 
diligent  sinking  and  working. — Parish  Fork  Co.  v.  Bridge- 
water  Co.,  51  W.  Va.  583,  42  S.  E.  655,  59  L.  R.  A.  566,  22 
M.  R.  145;  Aye  v.  Philadelphia  Co.,  193  Pa.  451,  74  Am.  St. 
Rep.  696,  20  M.  R.  177,  44  Atl.  555. 

And  the  reservation  of  a  small  rental  for  delay  will  not  pre- 
vent its  cancellation  where  the  lease  continues  indefinitely  idle. 
—Peoples  Gas.  Co.  v.  Dean,  193  F.  938,  113  C.  C.  A.  566. 

"Where  the  space  before  the  word  "years"  in  the  clause  of 
an  oil  and  gas  lease  limiting  the  time  to  complete  the  well  was 
left  blank,  the  lessee  was  entitled  to  a  reasonable  time. — Erie 
Oil  Co.  v.  Meeks,  40  Ind.  App.  156,  81  N.  E.  518. 

The  Court  will  not  allow  it  to  be  proved  that  the  nominal 
consideration  of  one  dollar  receipted  for  was  not  paid,  for  the 
purpose  of  invalidating  the  lease. — Poe  v.  Ulrey,  233  111.  56,  84 
N.  E.  46. 

Where  there  is  no  express  limitation  of  the  time  to  sink  the 
well  the  law  allows  a  reasonable  time. — New  American  Oil  Co. 
v.  Wolff,  166  Ind.  704,  76  N.  E.  255 ;  New  American  Oil  Co.  v. 
Troyer,  166  Ind.  402,  76  N.  E.  253,  77  N.  E.  739. 


680  OIL  AND  GAS.  4 

The  consideration  of  one  dollar  with  an  acreage  rental  for 
delay  is  valid,  and  the  contract  is  not  void  for  want  of  mutual- 
ity.—Pittsburg  Co.  v.  Bcviley,  76  Kan.  42,  12  L.  K.  A.  (N.  S.) 
745,  90  P.  803. 

The  reservation  of  rent  as  compensation  for  delay  to  sink 
makes  a  valid  consideration. — Indianapolis  G.  Co.  v.  Pierce,  36 
Ind.  App.  573,  76  N.  E.  173. ' 

A  written  oil  and  gas  lease  is  to  be  construed  like  any  other 
written  contract,  and  parol  evidence  will  not  be  allowed  adding 
new  covenants  to  be  followed  by  proof  of  breach  of  such  alleged 
covenants  and  consequent  forfeiture.  And  the  Court  will  not 
import  into  a  lease  contrary  to  its  express  terms  a  covenant 
for  immediate  sinking. — Rose  v.  Lanyon  Zinc  Co.,  74  P.  625, 
68  Kan.  126. 

Peculiarities  of  oil  and  gas  leases  stated ;  a  clause  allowing 
the  lessee  to  reconvey  is  not  to  be  construed  to  allow  the  lessor 
to  declare  the  lease  void. — New  American  Co.  v.  Troyer,  166 
Ind.  402,  76  N.  E.  253,  77  N.  E.  739. 

A  reserve  in  a  lease  of  a  right  to  cancel  if  it  should  be 
"detrimental  to  a  sale  of  the  place"  means,  if  it  should  be 
detrimental  to  a  sale  of  the  premises  as  then  used  for  surface 
purposes  and  wras  not  intended  to  allow  the  lessor  to  cancel  so 
as  to  get  a  better  price  for  the  oil  values. — Duntley  v.  Ander- 
son, 169  F.  391,  94  C.  C.  A.  647. 

A  lease  for  a  nominal  consideration,  giving  to  lessee  the  right 
to  sink  within  60  days  or  the  right  to  extend  the  time  by  pay- 
ment of  an  annual  rent,  which  he  is  not  obligated  to  pay,  may 
be  canceled  by  lessor  at  any  time  after  the  60  days,  no  well 
being  bored,  and  the  renewal  rent  not  being  paid. — Dill  v. 
Fraze,  169  Ind.  53,  79  N.  E.  971. 

Lessee  was  to  pay  $50  per  annum  rent  until  gas  was  found 
and  put  to  manufacturing  purposes,  in  which  event  the  rent 
was  to  be  $100  for  a  term  of  ten  years,  ' '  and  as  much  longer 
as  gas  or  oil  is  found  in  paying  quantities,"  or  the  rental  paid 
as  herein  provided  for.  Gas  was  found  in  quantity  enough  to 


OIL  AJSD  GAS.  681 

have  been  put  to  manufacturing  purposes,  but  the  lessee 
anchored  the  well,  and  paid  only  the  smaller  rent.  Held,  That 
he  was  not  entitled  to  hold  beyond  the  ten  years. — American 
Co.  v.  Williams,  3  Ind.  App.  685,  66  N.  E.  912. 

Where  the  demised  tract  later  comes  to  belong  to  different 
owners,  each  owner  is  entitled  to  the  royalties  from  wells  on  his 
own  ground. — Osborn  v.  Arkansas  0.  &  G.  Go.,  103  Ark.  175, 
146  S.  W.  122. 

The  privilege  to  lessee  to  be  allowed  an  extension  of  time  to 
sink  by  paying  rental  is  not  a  covenant  to  pay  such  rental,  but 
only  an  option.— United  States  v.  Comet  Oil  Co.,  187  F.  674. 

The  granting  of  exclusive  right  to  bore  for  a  given  time  for 
oil  and  gas,  with  an  acreage  rental,  in  case  no  well  is  drilled 
within  six  months,  but  with  no  covenant  to  sink  or  pay  the  rent, 
is  a  naked  option  revocable  at  will  of  the  lessor. — O'Neill  v. 
Bisinger,  11  Kan.  63,  93  P.  340. 

There  is  an  implied  covenant  for  good  title  in  an  oil  and  gas 
lease  not  only  of  the  grant  of  the  right  to  search,  but  of  the 
ownership  of  the  product  when  found. — Kilcoyne  v.  Southern 
0.  Co.,  61  W.  Va.  538,  56  S.  E.  888;  Headley  v.  Hoopengarner, 
60  W.  Ya.  626,  55  S.  E.  744. 

An  oil  lessee  holding  by  condition  that  he  put  down  a  well 
or  pay  so  much  per  month,  but  without  covenanting  to  do 
either,  may  insist  on  forfeiting  his  rights. — Glasgow  v.  Char- 
tiers  Co.,  152  Pa.  48,  25  Atl.  232,  17  M.  R.  523.  Nor  does  such 
right  to  pay  for  extended  time  make  him  personally  liable  for 
the  money.— Hays  v.  Forest  Oil  Co.,  213  Pa.  556,  62  Atl.  1072. 

Consideration  of  extent  of  right  to  use  surface  where  the 
lease  is  of  the  oil  and  gas  rights  only. — Fowler  v.  Delaplaih, 
79  Ohio  St.  279,  21  L.  R.  A.  (N.  S.)  100,  87  N.  E.  260;  Barns- 
doll  Co.  v.  Leahy,  195  F.  731, 115  C.  C.  A.  521. 

Forfeiture. 

Equity  will  not  forfeit  an  oil  lease  for  failure,  chargeable  to 
the  lessor's  bad  faith.— Doddridge  Co.  v.  Smith,  154  F.  970. 


682  OIL  AND  GAS. 

Where  there  was  no  pipe  line  or  other  market  for  the  gas  the 
Court  will  not  forfeit  a  lease  for  breach  of  covenant  to  sink,  but 
leave  the  lessor  to  his  action  for  damages. — Poe  v.  Ulrey,  233 
111.  56,  84  N.  E.  46. 

A  lessor  can  not  accept  the  rent  and  afterwards  enforce  a 
supposed  right  to  forfeit  for  non-development. — Monarch  0. 
Co.  v.  Richardson,  124  Ky.  602,  99  S.  W.  668 ;  Dill  v.  Froze, 
169  Ind.  53,  79  N.  E.  971 ;  New  American  0.  Co.  v.  Wolff,  166 
Ind.  704,  76  N.  E.  255 ;  New  American  Co.  v.  Troyer,  166  Ind. 
402,  76  N.  E.  253,  77  N.  E.  739 ;  Smith  v.  Steele,  96  Kan.  106, 
150  P.  519. 

Where  the  lessee  has  been  boring  with  diligence  the  Court 
may  extend  the  time  to  prevent  a  forfeiture. — Eastern  Co.  v. 
Coulehan,  65  W.  Va.  531,  64  S.  E.  836.  This  is  a  well  consid- 
ered case  as  to  when  an  estate  in  the  leased  oil  vests  and  how  it 
may  be  lost,  and  of  the  right  of  protection  to  a  lessee  against 
harsh  covenants. 

Where  the  lessor  allows  the  tenant  to  continue  at  work  on 
the  well  under  difficulties  after  notice  to  quit,  he  is  estopped  to 
enforce  a  forfeiture  under  the  notice. — Campbell  v.  Rock  Oil 
Co.,  151  F.  191,  80  C.  C.  A.  467. 

The  activity  of  oil  operations  in  the  locality  will  be  consid- 
ered on  the  question  of  diligent  development. — Buffalo  0.  &  G. 
Co.  v.  Jones,  75  Kan.  18,  88  P.  537. 

After  lapse  of  a  reasonable  time  to  sink,  lessor  is  entitled  to 
a  cancellation  of  the  lease. — Kimball  0.  Co.  v.  Keeton,  31 
Ey.  L.  146, 101  S.  W.  881',J)avis  v.  Riddle,  25  Colo.  App.  162, 
136  P.  551. 

Long  delay  to  pump  after  striking  oil  held  ground  for  can- 
cellation, although  it  was  not  shown  that  the  wells  could  have 
been  worked  to  a  profit,  but  the  lessees  were  allowed  to  remove 
the  casings. — Collins  v.  Mt.  Pleasant  Co.,  85  Kan.  483,  38 
L.  R.  A.  (N.  S.)  134, 118  P.  54. 


OIL  AND  GAS.  683 

Eainages  for  Failure  to  Sink. 

Bradford  Oil  Co.  v.  Blair  is  one  of  the  earliest  cases  where 
damages  were  given  for  breach  of  covenant  to  operate  an  oil 
well  with  diligence,  the  particular  language  there  used  being 
"without  interruption  for  the  common  benefit  of  the  parties," 
and  the  measure  of  damages  was  ruled  to  be  the  value  of  the 
oil  royalty,  which  diligence  would  have  produced  in  excess  of 
what  was  produced  less  cost  of  production,  adding  interest. — 
113  Pa.  83,  57  Am.  Rep.  442,  4  Atl.  218. 

A  "forfeit"  of  $500  for  failure  to  sink  three  wells  will  be 
construed  as  liquidated  damages,  and  not  as  a  penalty. — 
Davidson  v.  Hughes,  76  Kan.  247,  91  P.  913. 

The  question  of  damages  for  failure  to  sink  under  two  con- 
tracts more  or  less  connected  was  considered  in  Gayton  v.  Day, 
178  F.  249, 101  C.  C.  A.  609. 

Oil  in  Paying  Quantities. 

It  is  for  the  operator,  the  lessee,  to  say  whether  oil  is  being 
obtained  in  paying  quantities. — Lowther  O.  Co.  v.  Miller- 
Sibley  OH  Co.,  53  W.  Va.  501,  97  Am.  St.  Rep.  1027,  44  S.  E. 
433,  22  M.  R.  656. 

It  is  paying  where  receipts  exceed  expenses,  although  it  may 
never  repay  the  original  cost. — Id. 

In  a  gas  lease  giving  a  rental  in  case  gas  is  produced  in 
sufficient  quantities  to  make  it  profitable,  the  cost  of  sinking 
the  well  is  not  to  be  considered,  but  only  the  operating  expense. 
—Indiana  N.  G.  Co.  v.  Wilhelm,  44  Ind.  App.  100,  86  N.  E.  86. 

Construction  of  Terms  of  Lease. 

From  the  many  incidents  peculiar  to  oil  and  gas,  the  rule  of 
construction  of  oil  and  gas  leases  is  more  strict  in  favor  of  the 
lessor  than  in  other  mining  leases. — Frank  Co.  v.  Belleview 
Co.,  29  Okla.  719,  43  L.  R.  A.  (N.  S.)  487, 119  P.  260. 

Where  a  lease  is  ambiguous  on  its  face  the  Court  will  adopt 
that  construction  which  the  parties  themselves  have  put  upon 


684  OIL  AND  GAS. 

it—Pittsburg  Co.  v.  Bailey,  76  Kan.  42,  12  L.  R.  A.  (N.  S.) 
745,  90  P.  803. 

Natural  gas  lease  construed  to  cease  by  its  terms  when  nat- 
ural gas  ceased  to  be  used  generally  for  manufacturing  pur- 
poses.— Diamond  Co.  v.  Knote,  38  Ind.  App.  20,  77  N.  E.  954. 

The  Court  may  take  judicial  notice  that  the  pressure  of  gas 
in  a  well  will  decline,  but  where  parties  have  accepted  a  test 
pressure,  the  same  condition  of  things  will  be  assumed  to  con- 
tinue until  proof  of  different  conditions. — Moore  v.  Ohio  Val. 
Gas  Co.,  63  W.  Va.  455,  60  S.  E.  401. 

In  Burton  v.  Forest  Oil  Co.  the  Court  refused  to  allow  proof 
of  a  trade  distinction  between  gas  from  a  gas  well  (proper) 
and  gas  from  an  oil  well.— 204  Pa.  349,  22  M.  R.  507,  54 
Atl.  266. 

The  casing  of  an  oil  well  is  a  fixture  removable  by  the  lessee. 
—Perry  v.  Acme  Oil  Co.,  44  Ind.  App.  207,  80  N.  E.  174,  88 
N.  E.  859;  Churchill  v.  More,  4  Cal.  App.  219,  88  P.  290. 

The  assignment  of  a  lease  does  not  carry  the  pumped  oil  on 
hand. — Dresser  v.  Transportation  Co.,  8  W.  Va.  553;  McGuire 
v.  Wright,  18  W.  Va.  507. 

Oil  Sinking  Contracts. 

Measure  of  damages  where  defendant  agreed  to  sink  oil 
well  2,000  feet,  and  quit  at  1,500  feet.— Corbin  Co.  v.  Mull,  123 
Ky.  763,  97  S.  W.  385. 

Judgment  sustained  on  contract  to  pay  $1,500  as  liquidated 
damages  for  failure  to  sink  oil  well  by  lessee. — Blodget  v. 
Columbia  Co.,  164  F.  305,  90  C.  C.  A.  237. 

Plaintiff  contracted  to  drill  six  gas  wells  at  80  cents  per  foot. 
After  drilling  three  the  owner  ordered  the  work  stopped.  Held, 
That  plaintiff  could  recover  for  the  profits  he  might  reason- 
ably have  expected  to  make  by  showing  the  cost  of  sinking  in 
similar  strata,  the  oil  field  being  well  developed  and  essential 
facts  being  readily  provable. — Fredonia  Gas  Co.  v.  Bailey,  77 
Kan.  296,  94  P.  258. 


OIL  AND  GAS.  685 

A  covenant  to  provide  proper  tubing  and  casing  is  no  guar- 
anty that  such  appliances  will  keep  the  water  out  of  the  well. — 
Vail  v.  Freeman,  144  Cal.  356,  77  P.  974. 

Damages  in  Oil  Trespass  Cases. 

The  measure  of  damages  for  wrongful  taking  of  oil  is  the" 
same  in  principle  as  that  in  ore  trespass  cases  (p.  446) ,  depend- 
ing on  the  degree  of  wrrong  of  which  the  trespasser  is  guilty. 
In  some  instances  the  value  of  the  coal  or  ore  in  place  is  made 
the  true  measure,  but  that  can  not  be  applied  in  an  oil  or  gas 
case.  It  seems  that  the  measure  is  confined  (1)  to  the  value 
of  the  product  when  severed  or  (2)  to  the  value  of  such  prod- 
uct less  the  cost  of  production  or  (3)  to  customary  royalty. 

Trespassers  who  drilled  for  oil,  believing  they  had  a  lawful 
right,  are  liable  only  for  royalty  as  the  measure  of  damages. — 
Turner  v.  Seep,  167  F.  647. 

A  pipe  line  company  wrongfully  took  the  gas  from  the  well 
belonging  to  plaintiff,  so  that  it  became  one  of  60  wells  feeding 
the  pipe  line.  Defendant  was  decreed  to  pay  for  one-sixtieth 
part  of  the  total  supply  as  the  fairest  approximation  to  the 
proper  measure  of  damages. — Great  Southern  Gas  Co.  v.  Logan 
Gas  Co.,  155  F.  114,  83  C.  C.  A.  574. 

Holders  of  a  junior  oil  lease  allowed  deductions  for  expenses 
prior  to  their  knowledge  of  the  older  lease:  after  notice, 
required  to  account  in  full. — Guffey  v.  Smith,  237  U.  S.  101, 
35  Sup.  Ct.  Rep.  526,  59  L.  Ed.  856. 

Miscellaneous  Rulings. 

A  State  can  not  forbid  the  exportation  of  natural  gas.  Such 
substance  is  the  property  of  the  individual  who  lawfully  re- 
duces it  to  possession. — Kansas  N.  G.  Co.  v.  Haskell,  172 
F.  545. 

A  gas  company  can  not  charge  rent  for  its  meter.  The  cus- 
tomer can  not  be  compelled  to  pay  for  the  measurement  of  the 
gas  he  uses. — Louisville  G.  Co.  v.  Dulaney,  100  Ky.  405,  36 
L.  R.  A.  125,  38  S.  W.  703. 


686  OIL  CLAIMS. 

The  natural  gas  supply  began  to  fail  and  the  fuel  was  sup- 
plied at  greatly  increased  cost  to  the  gas  company.  All  its 
other  subscribers  consented  to  increased  rates.  Held,  No  case 
for  equity  to  compel  delivery  by  preliminary  injunction. — 
Brown  v.  Equitable  G.  Co.,  155  Pa.  359,  26  Atl.  433. 

A  manufacturing  company  contracting  for  natural  gas  for 
fuel  only  but  using  it  for  illuminating  purposes  also,  is  liable 
upon  a  quantum  valebat  for  such  extra  use. — Philadelphia  Co. 
v.  Park,  138  Pa.  346,  22  Atl.  86. 

Construction  of  contract  for  daily  delivery  of  oil  by  the 
month,  holding  that  excess  delivery  one  month  does  not  count 
to  excuse  non-delivery  another  month,  and  that  breach  by  one 
party  does  not  render  the  contract  "void,"  but  excuses  per- 
formance by  the  other. — Central  Oil  Co.  v.  Southern  Ref.  Co., 
154  Cal.  165,  97  P.  177. 

The  Court  will  take  judicial  notice  that  gas,  unlike  oil,  can 
not  be  stored.— Eastern  Co.  v.  Coulehan,  65  W.  Va.  531,  64 
S.  E.  836. 

An  oil  lease  is  a  chattel  real,  and  personal  property. — Duff 
v.  Keaton,  33  Okla.  92,  42  L.  R.  A.  (N.  S.)  472,  124  P.  291. 


OIL  CLAIMS  ON  THE  PUBLIC  DOMAIN. 

Oil  Lands. 

Ever  since  the  passage  of  the  placer  mining  act,  lands  val- 
uable for  deposits  of  petroleum  were  considered  as  open  to 
location  and  patent  as  placer  claims,  and  as  such,  records  were 
made  followed  by  entries  and  patents  as  a  matter  of  ordinary 
course. — 4  L.  D.  60,  284,  16  Id.  117.  And  such  action  of  the 
land  office  was  followed  by  the  Courts  in  dealing  with  oil 
located  or  patented  as  placer  ground  without  question  of  its 
regularity.— Gird  v.  California  Oil  Co.,  60  F.  532,  18  M.  R.  45; 
Van  Horn  v.  State,  5  Wyo.  501,  40  P.  964. 


OIL  CLAIMS.  687 

After  this  unbroken  procedure  of  more  than  20  years,  the 
land  office  in  1896  (Union  Oil  Co.,  23  L.  D.  222)  abruptly  held 
that  oil  was  not  a  mineral  and  oil  lands  therefore  not  subject 
to  entry.  This  was  immediately  followed  by  an  Act  of  Con- 
gress making  such  lands  in  terms  patentable  as  placers. — 29 
St.  L.  526.  The  ruling  itself  which  induced  the  confusion  was 
later  reversed  by  the  Secretary  of  the  Interior. — 25  L.  D.  351. 

The  A.  C.,  above  referred  to,  allowing  their  entry,  is  printed 
on  p.  648,  and  the  special  A.  C.  for  annual  labor  on  oil  claims 
on  p.  142.  They  are  located  and  held  like  any  other  class  of 
placers.— De  Wolf  skill  v.  Smith,  5  Cal.  App.  175,  89  P.  1001. 

Discovery. 

The  only  obvious  distinction  is,  that  from  the  nature  of 
things  there  can  be  no  such  thing  as  an  open  surface  discovery. 
The  New  Mexico  Statute  recognized  this  fact  by  making  special 
provision,  allowing  time  to  sink  the  well  (p.  276),  and  the 
Courts  liberally  protect  the  operator  while  sinking.  As  to  this 
class  of  claims  it  has  been  held  that  oil  seepage  or  surface 
indications  or  knowledge  of  its  existence  upon  adjoining  lands 
is  not  enough  to  count  as  a  discovery. — Nevada  Oil  Co.  v. 
Miller,  97  F.  681,  688;  Nevada  Co.  v.  Home  Co.,  98  F.  673,  20 
M.  R.  283;  Olive  Co.  v.  Olmstead,  103  F.  568,  20  M.  R,  700; 
Weed  v.  Snook,  144  Cal.  439,  77  P.  1023. 

The  locators  of  an  oil  placer  are  entitled  to  hold  possession 
and  to  be  protected  against  invasion  while  sinking,  although 
they  have  not  yet  a  discovery.  .A  neighbor,  although  he  has  a 
prior  actual  discovery  by  striking  oil,  will  not  be  allowed  to 
survey  in  such  claim.— Phillips  v.  Brill,  17  Wyo.  26,  95  P.  856 ; 
but  a  party  will  not  be  so  protected,  when  he  merely  stakes 
and  guards  the  claim— Whiting  v.  Straup,  95  P.  849,  17  Wyo. 
1,  129  Am.  St.  Rep.  1093 ;  New  England  Co.  v.  Congdon,  152 
Cal.  211,  92  P.  180;  Smith  v.  Union  Co.,  166  Cal.  217,  135  P. 
966.  An  idle  derrick  will  not  defeat  a  homestead  entry. — Mc- 
Lcmore  v.  Express  Co.,  158  Cal.  559,  139  Am.  St.  Rep.  147, 112 
P.  59. 


688  OIL  CLAIMS. 

An  oil  well  was  sunk  on  the  boundary  line  between  two 
claims  in  which  well  oil  was  discovered.  Held,  That  it  \v;is 
good  to  hold  one  of  the  claims  at  least,  whichever  the  party 
chose  to  apply  it  to.— Phillips  v.  Brill,  17  Wyo.  26,  95  P.  85G. 

A  party  located  a  placer  oil  claim  on  which  he  had  no  dis- 
covery and  sold  a  part  of  it  to  plaintiffs.  He  then  was 
employed  by  defendants  to  locate  placer  oil  claims  for  them. 
He  located  the  same  land  which  he  had  sold  to  plaintiffs.  Held, 
That  defendants  were  not  estopped  by  their  agent's  deed  to 
claim  the  benefits  of  his  discovery  and  location. — Whiting  v. 
Straup,  17  Wyo.  1,  129  Am.  St.  Rep.  1093,  95  P.  850. 

Boring  into  "shale  grease"  is  not  a  discovery  of  oil. — Dean 
v.  Omaha  Co.,  21  Wyo.  133,  128  P.  881,  129  P.  1023.  Oil 
seepage  and  slight  flow  of  gas  no  discovery. — 40  L.  D.  602. 
The  same  as  to  oil  shale.— 39  L.  D.  335. 

An  oil  placer  claim  was  staked  and  recorded  and  a  derrick 
erected,  but  the  boring  was  not  prosecuted  with  any  diligence 
and  no  oil  had  been  discovered.  At  this  juncture  a  party 
entered  upon  the  land  to  homestead  it,  and  the  Court  held  that 
he  had  the  better  right. — McLemore  v.  Express  Oil  Co.,  158 
Cal.  559,  139  Am.  St.  Rep.  147, 112  P.  59. 

Failure  to.  follow  up  a  strike  of  oil  by  pumping  does  not 
invalidate  the  discovery. — Borgwardt  v.  McKittrick  Co.,  164 
Cal.  650, 130  P.  417. 

The  decision  in  lode  and  placer  cases  that  the  discovery  must 
be  within  the  lines  of  the  claim,  that  the  order  of  the  several 
items  of  location  is  immaterial  when  once  fully  complete  (no 
third  parties  intervening),  and  the  right  to  file  amended  rec- 
ords and  notices,  apply  to  oil  claims. — Dean  v.  Omaha  Co.,  21 
Wyo.  133,  128  P.  881,  129  P.  1023. 

In  Hidlinger  v.  Big  Sespe  Oil  Co.  the  Court  said  that  title 
by  location  and  possession  without  discovery  was  good  against 
every  person  except  the  United  States. — 28  Cal.  App.  69,  151 
P.  369.  But  in  this  case  both  parties  were  in  privity  with  the 
same  title,  and  rights  of  a  second  locator  \vere  not  in  contest. 


MEXICAN  MINING  LAW.  689 

The  Five  Claims  Act. 

The  "annual  assessment  labor"  mentioned  in  the  section 
printed  on  page  142,  means  the  annual  labor  and  not  location 
work,  and  a  discovery  on  one  of  a  group  of  oil  claims  is  not 
good  to  hold  another  claim  in  the  group. — Smith  v.  Union  Co., 
166  Cal.  217,  135  P.  966. 

Withdrawal  of  Oil  Lands. 

Oil  lands  can  not  be  withdrawn  from  entry  after  rights 
vested  by  discovery. — United  States  v.  McCutchen,  217  F.  650. 

But  see  this  case  as  later  reported,  under  THE  WITHDRAWAL 
ACTS,  p.  422. 

Relocator  Out  of  Possession. 

Both  plaintiff  and  defendant  had  locations  imperfect  for 
want  of  staking  and  insufficient  record.  Plaintiff's  title  began 
in  1899,  defendant's  in  1900.  Defendant  kept  possession  and 
did  his  annual  labor,  which  plaintiff  did  not.  Plaintiff  filed  a 
relocation  after  adverse  suit  begun,  and  was  allowed  to  bring 
it  into  the  record.  Held,  That  defendant's  possession  was  good 
against  the  attempted  relocation  by  a  party  out  of  possession, 
and  in  default  on  his  annual  labor. — Ware  v.  White,  81  Ark. 
220, 108  S.  W.  831. 


MEXICAN  MINING  LAW  * 


Not  only  the  mining  laws  of  the  Republic  of  Mexico,  but  also 
those  of  the  United  States,  are  very  largely  the  outgrowth  of 
the  civil  rather  than  the  common  law,  notwithstanding  the  fact 
that  the  law  of  the  United  States  has,  in  most  instances,  be*»n 
an  offspring  of  the  common  law  of  England. 


•For  the  text  of  this  Chapter  we  are  under  obligations  to  Messrs. 
Richardson  &  Doan,  Douglas,  Ariz.,  authors  of  "Digest  of  the  Mexican 
Mining  Law,"  and  "The  Corporation  Laws  of  Mexico." 


C90  MEXICAN  MINING  LAW. 

The  civil  law  concerning  mines,  which  was  in  force  in  Spain 
at  the  time  of  the  settlement  of  Mexico  by  the  Spaniards,  was 
based  upon  the  assumption  that  mines  should  not  become  prop- 
erty in  the  same  sense  as  the  soil,  but  should  be  held  and 
worked  for  the  public  good.  This  law  regarded  gold,  silver  and 
precious  stones  as  belonging  to  the  state,  absolutely,  while  some 
of  the  baser  metals  belonged  to  the  owner  of  the  soil,  subject 
to  control  by  certain  of  the  departments  of  state.  The  resem- 
blance to  the  common  law  of  England  exists  in  the  case  of 
"royal  mines"  which,  when  proved  to  exist  within  private 
ground,  are  still  considered  the  property  of  the  crown. 

The  present  mining  law  of  Mexico  is  of  recent  enactment. 
The  old  Spanish  mining  laws  in  force  at  the  time  Mexico 
secured  her  independence  (1822)  were  retained  for  many 
years,  with  such  changes  only  as  were  necessitated  by  the 
change  in  the  form  of  government ;  and  until  the  adoption  of 
the  recent  laws,  the  Spanish  ordinance  of  May  23,  1783,  was 
largely  determinative  of  all  rights  in  mining  properties. 

Under  the  present  law  the  title  to  all  mines,  with  the  excep- 
tions hereinafter  noted,  is  in  the  Republic  of  Mexico,  and  when 
it  passes  title  it  is  in  the  form  of  a  lease,  perpetual  so  long  as 
the  federal  tax  is  paid.  This  tax  is  substituted  for  the  old 
royalty,  which  was  a  part  of  the  metal  extracted.  There  is  no 
work  now  required  of  the  possessor  of  mining  rights,  his  title 
depending  upon  the  payment  of  the  tax  imposed. 

Although  the  theory  of  ownership  is  quite  different  from 
that  in  the  United  States,  the  manner  of  disposing  of  mineral 
rights  in  Mexico  is  quite  similar  to  that  of  our  own  country. 

The  Minister  de  Fomento  is  a  cabinet  officer  whose  duties 
relative  to  the  disposition  of  the  Mexican  public  domain  are 
almost  identical  with  those  of  the  Secretary  of  the  Interior. 
The  Mineral  Agents,  who  are  appointed  for  the  respective  dis- 
tricts throughout  the  Republic,  perform  the  duties  which,  in 
the  United  States,  devolve  upon  the  Register  and  Receiver  of 
the  local  land  offices,  while  in  addition  they  attend  to  the 
recording  of  locations  or  "denouncements"  of  claims  and  the 


MEXICAN  MINING  LAW.  691 

survey  for  patenting;  in  this  respect  taking  the  place  of  the 
County  Recorder  and  Surveyor  General. 

The  term  "claim,"  as  used  in  the  mining  laws  of  the  United 
States,  has  no  exact  equivalent  in  the  Mexican  law;  the  word 
pertenencia  (meaning  portion)  is  the  unit  of  measurement  of 
the  surface  of  mining  rights  as  in  the  old  Spanish  law. 

A  pertenencia,  under  the  present  law,  consists  of  a  piece  of 
ground  the  surface  of  which  is  100  metres  square  (about  328 
feet),  and  in  size  can  be  departed  from  only  in  case  former 
locations  have  segregated  the  ground  in  such  shape  that  the 
form  and  size  must,  of  necessity,  be  varied. 

Under  the  present  law  any  proper  person  may  locate  a  piece 
of  mineral  ground  containing  as  many  pertenencias  as  he 
desires,  although  he  may  not  locate  less  than  one  pertenencia, 
except  in  those  cases  where  former  locations  have  left  an  iso- 
lated piece  of  ground,  the  area  of  which  is  less  than  a  perte- 
nencia. 

Originally  the  manner  of  initiating  a  right  to  mineral 
ground  bore  considerable  resemblance  to  the  procedure  of 
miners  under  the,  local  district  rules  in  the  United  States  dur- 
ing the  great  mining  activity  following  the  discovery  of  gold 
in  California;  while  the  present  law  still  contains  many  fea- 
tures in  common  with  our  law. 

The  person  locating  or  "denouncing"  a  piece  of  mineral 
ground  must  be  a  citizen  of  Mexico,  or  a  domestic  corporation 
if  the  ground  is  within  the  prohibited  zone  of  eighty  kilometers 
along  the  border  of  an  adjoining  country,  but  both  foreigners 
and  foreign  companies  can  freely  locate  and  acquire  title  to 
mines  not  falling  within  this  zone. 

The  many  controversies  arising  in  the  United  States  over 
the  mineral  or  non-mineral  character  of  the  ground  are  agree- 
ably absent  in  Mexico.  The  Department  de  Fomento  seeks  to 
encourage  and  assist  the  legitimate  miner  attempting  to 
develop  property,  having  a  fair  prospective  value  as  mining 
ground.  The  suspension  of  patent  proceedings  at  the  instiga- 
tion of  disinterested  parties  seldom  occurs. 


692  THE  640  ACRE  HOMESTEAD  ACT. 

Under  the  Mexican  law  there  is  absolutely,  no  extralateral 
right  of  any  character.  The  one  owning  a  mining  "title"  can 
work  all  mineral  within  his  property,  but  can  not  extend  his 
working  beyond  his  side  or  end  lines  in  any  event.  Moreover, 
the  mining  title  does  not  carry  any  surface  right  as  understood 
in  the  United  States.  If  the  mine  is  located  within  land  belong- 
ing to  some  other  person  the  surface  rights  must  be  acquired 
by  purchase  or  condemnation,  while  if  on  government  ground, 
the  right  to  the  surface  only  exists,  in  so  far  as  it  is  necessary 
for  the  working  of  the  mine  and  may  not  cover  the  entire 
surface  of  the  claim. 

What  changes  have  been  made  in  Mexico  in  mining  law  since 
the  above  was  written  in  1910  can  not  be  stated  in  print  until  a 
stable  form  of  government  for  that  country  is  worked  out,  nor 
until  the  United  States  return  to  its  ancient  policy  of  protect- 
ing its  citizens  and  their  property  rights  in  foreign  countries. 

The  640  Acre  Homestead  Law 

was  approved  December  29,  1916,  after  the  body  of  this  book 
was  in  press.  Its  section  9  contains  a  reservation  of  all  min- 
erals to  the  United  States  leaving  the  land,  even  after  patent 
issues,  open  to  prospecting  and  entry  as  mineral  land  either 
for  its  coal  or  its  lode  values,  and  even  doubtless,  to  a  certain 
extent,  as  a  placer  claim,  under  regulations  to  be  issued  by  the 
Interior  Department,  which  should  appear  in  Vol.  45  or  46  of 
the  Land  Decisions. 


GLOSSARY  OF  MINING  TERMS 


ABANDONMENT.  Quitting  a  claim  with  no  intention  to  further  assert 
title.  The  relinquishment  of  a  right. 

ACEQUIA.     A  ditch.    Spanish. 

ADIT.  A  horizontal  drift  or  other  passage  used  as  an  opening  or  drain 
to  a  mine;  applied  to  no  level  except  one  opening  on  the  surface.  Latin. 

ADVENTURER.     A  shareholder. 

ALLOY.     A  compound  of  two  or  more  metals  fused  together. 

ALLUVIUM.     The  sediment  of  streams  and  floods.    Latin. 

AMALGAM.  The  mechanical  combination  of  quicksilver  with  gold  or 
silver. 

ANDESITE.  A  dark  porphyritic  lava,  composed  of  black  crystals  im- 
bedded in  a  mass  of  light  colored  feldspar.  ANDESITE  BRECCIA.  Frag- 
mental  andesite  united  into  a  compact  rock  by  silica  and  other  natural 
cementing  materials.  The  main  eruptive  rock  of  the  Cripple  Creek  dis- 
trict. ANDESITE  TUFF.  Andesite  in  minute  fragments,  finer  than  breccia. 
John  Wellington  Finch. 

ANTICLINE.  The  bend  of  a  stratum  with  the  convex  side  up.  Opposed 
to  synclinal. 

ANTIMONY.  A  silver  white,  hard,  crystalline,  metallic  element,  found 
in  non-commercial  quantities  in  many  ores.  Used  in  alloys  and  in  medicine. 

APEX.     The  top  of  a  lode.  Latin. 

ARASTRA.  A  circular  mill  for  grinding  quartz  by  trituration  between 
stoues  attached  loosely  to  cross  arms.  Spanish, 

ARCH.     A  part  of  the  gangue  left  standing  for  support. 

ARGENTIFEROUS.     Silver  bearing.    Latin. 

ARSENIC.  A  volatile  metallic  element,  notoriously  poisonous  in  its 
fumes  or  in  any  other  form.  Used  as  a  drug  in  a  form  of  arsenious 
oxide  or  white  arsenic.  It  forms  many  oxides  and  sulphides.  Extensive 
deposits  in  Canada. 

ASBESTOS.  A  mineral  product  of  a  silky  texture  when  pure.  Inert, 
non-combustible,  non-conductor  of  heat  and  electricity.  Fire-proof  inatq- 
rial  par  excellence.  Occurs  in  two  varieties,  the  fibrous  and  non-fibrous. 
The  former  only  has  much  commercial  value.  Victor  Blanc,  Assayer. 

ASCENSION  THEORY.  That  referring  the  filling  of  fissures  to  matter 
from  below.  Von  Cotta,  71. 

ASPHALT.  A  solid  form  of  native  bitumen,  which  occurs  more  or  less 
pure,  or  mixed  with  inorganic  or  other  adventitious  non-bituminous  mat- 
ter. The  name  is  also  applied,  commercially  and  in  engineering  parlance, 
to  materials  in  general  containing  this  form  of  native  bitumen  or  any 
form  resembling  it.  See  BITUMEN.  C.  0.  Batter. 
(693) 


694  GLOSSARY  OF  MINING  TERMS. 

ASSAY.  A  test  of  the  mineral  contained  in  a  larger  mass  by  extract- 
ing and  weighing  the  product  of  a  sample.  See  p.  482. 

ASSESSMENT  WORK.  The  annual  labor  ($100)  required  to  hold  a 
claim.  See  p.  114. 

AURIFEROUS.     Gold  bearing.    Latin. 

BACK.     The  roof  of  a  drift  stope  or  other  working. 

BAL.     A  mine.    Cornish. 

BANK.     The  surface  at  the  pit's  mouth. 

BANKET.     Term  applied  to  the  ore  of  the  Rand  Reefs. 

BANKSMAN.  The  man  at  the  shaft-mouth  who  handles  the  bucket. 
Cornish. 

BAR  DIGGINGS.    Gold  washing  on  river  bars. 

BARRIERS.  Masses  of  unworked  gangue  or  coal  left  to  prevent  drainage 
from  mine  to  mine. 

BASALT.  A  lava  rock  having  a  tendency  to  form  jointed  columns. 
It  may  hold  iron  enough  to  deflect  the  needle,  but  is  not  known  to  carry 
constituents  of  value. 

BASE  BULLION.     Pig  lead  containing  its  gold  and  silver  unseparated. 

BASE  METALS.  All  metals  except  gold,  silver,  mercury  and  the 
platinum  group,  which  are  termed  noble  metals. 

BAUXITE.  An  earthy  or  clay  ore,  red  to  white  in  color.  A  ferric  hy- 
droxide." The  principal  source  of  aluminum. 

BED.     A  horizontal  seam  or  deposit  of  ore. 

BED  ROCK.  The  solid  rock  outcropping  at  surface  or  underlying  the 
gravel,  slide  or  other  loose  earth. 

BISMUTH.  A  brittle  crystalline  grayish  white  metal  very  easily  fusible. 
Found  as  an  oxide  or  sulphide  in  ores  of  gold,  silver,  copper  and  other 
metals.  Not  usually  distinguishable  except  by  assay.  As  distributed 
with  such  ores,  has  no  commercial  value  unless  of  high  percentage.  Frank 
M.  Taylor. 

BITUMEN  consists  of  a  mixture  of  native  hydrocarbons  and  their 
derivatives,  which  may  be  gaseous,  liquid,  a  viscous  liquid  or  a  solid, 
but,  if  a  solid,  melting  more  or  less  readily  on  the  application  of  heat, 
and  soluble  in  turpentine,  chloroform,  bisulphide  of  carbon,  similar  solv- 
ents and  in  the  malthas  or  heavy  asphaltic  oils.  Natural  gas,  petroleum, 
maltha,  asphalt,  grahamite,  gilsonite,  ozokerite,  etc.,  are  bitumens.  See 
ASPHALT.  C.  0.  Baxter. 

BLACK  JACK.    A  dark  variety  of  zinc  blende. 

BLENDE.     A  sulphide  of  zinc. 

BLOSSOM.     Decomposed  out-crop  of  a  vein.    Gossan.    Iron  hat. 

BLOW-OUT.     A  spreading  out-crop. 

BONANZA.  Fair  weather  at  sea;  a  large  body  of  paying  ore.  Became 
a  familiar  term  upon  the  opening  of  the  immense  ore  bodies  in  the  Com- 
«tock.  Sp. 

BOOM  DITCH.     The  ditch  from  the  dam  used  in  booming.    (2)     A  slight 


GLOSSARY  OF  MINING  TERMS.  695 

channel  cut  down  a  declivity  into  which  is  let  a  sudden  head  of  water 
intended  to  cut  to  bed-rock  and  prospect  for  the  apex  of  any  underlying 
lode. 

BOOMING.  A  kind  of  placer  mining  where  the  water  is  accumulated  in 
a  dam  and  let  out  at  intervals,  so  as  to  utilize  its  cutting  power  in  the 
form  of  a  torrent. 

BORRASCA.     The  reverse  of  Bonanza.    Out  of  pay. 

BOULDER.     A  large,  loose,  rounded  stone. 

BRATTICE.     A  bulkhead. 

BREAST.     The  heading  of  a  drift,  tunnel,  or  other  horizontal  working. 

BRECCIA.     A  conglomerate  of  angular  fragments. 

BRITTLE  SILVER.  Stephanite.  A  sulphide  of  antimony  and  silver  con- 
taining 68.5  per  cent  silver  with  the  antimony  variably.  Sometimes 
contains  iron,  copper  and  arsenic;  variable  in  color,  hardness  and  specific 
gravity.  B.  B.  Lawrence. 

BROACHING.     Trimming  or  straightening  a  working. 

BRONZE.  An  alloy  of  copper  and  tin.  Brass  is  an  alloy  of  copper  and 
zinc. 

PUDDLING.     Separating  ores  by  washing. 

BULLION.     Uncoined  gold  or  silver. 

CACHE.  A  place  where  a  prospector's  provisions  or  outfit  are  buried  or 
hidden.  French. 

CALAMINE.     An  ore  of  zinc.    Lapis  Calaminaris. 

CALAVERITE.  A  telluride  of  gold,  containing  55.5  per  cent  tellurium 
and  44.5  per  cent  gold ;  allied  to  and  commonly  misdescribed  as  sylvanite ; 
sometimes  distinguishable  from  the  latter  by  a  yellow  color  and  lack  of 
crystallization.  J.  W.  Finch. 

CANON.  A  narrow  valley.  Termed  Box  Canon  when  the  sides  are 
perpendicular.  Spanish. 

CAP.  Space  where  the  walls  contract  so  as  to  leave  only  a  trace  of  the 
vein.  A  pinch.  (2)  A  space  in  the  vein  where  the  gangue  becomes 
barren. 

CARBONATES.  The  combination  of  carbonic  acid  with  bases.  Soft 
carbonates  have  lead  for  a  base.  Hard  carbonates  have  iron  for  a  base. 
An  ore  of  lead  and  silver. 

CARNOTITE.  An  ore  carrying  vanadium  and  uranium  in  the  form  of 
a  vanadate  of  uranium  and  potassium;  generally  occurs  as  an  impregna- 
tion in  sedimentary  sandstone  beds.  Largest  known  deposits,  in  San 
Miguel  and  Montrose  counties,  Colorado.  A.  B.  Frenecl. 

CEMENT.     Gold-bearing   gravel   united   and   hardened  into   a   compact 


CERUSITE.  A  valuable  lead  carbonate  ore,  easily  convertible  into  white 
lead.  Noted  for  its  cabinet  specimens  of  crystals.  Supposed  to  be  galena 
with  its  sulphur  displaced. 


696  GLOSSARY  OF  MINING  TERMS. 

CHALCOPYRITE.  (CuFeSo)  Cu-34.C  per  cent.  S-34.9  per  cent.  Fe-30.5 
per  cent.  The  most  abundant  ore  of  copper  and  considered  by  some 
authorities  to  be  the  original  from  which  all  other  copper  bearing  ores 
have  been  derived  by  processes  of  alteration.  Cranston  Howe  Carpenter. 

CHIMNEY.  A  pocket  or  ore  body  when  found  pipe  shape,  with  general 
perpendicular  position. 

CHLORIDES.     Compounds  of  chlorine  with  other  elements. 

CHUTE  (or  SHOOT).  A  flume  for  sliding  ore.  (2)  A  chimney  of  ore. 
French. 

CINNABAR.     Sulphide  of  mercury. 

CLAIM.  A  location.  The  amount  of  ground  which  may  be  located  by 
a  single  person  or  association.  See  p.  591. 

CLEAN-UP.  The  operation  of  collecting  the  gold  which  has  settled  in 
the  flume  of  a  placer  or  in  an  arastra. 

CLEAVAGE.  The  property  of  splitting  more  or  less  readily  in  certain 
definite  directions. 

COASTER.  One  who  picks  dump,  or  gleans  in  abandoned  mines  for  ore 
in  sight. 

COBALT.  A  hard,  gray  ductile  metal.  Its  ores  are  usually  combined 
with  nickel,  arsenic  or  sulphur.  Used  in  pottery  glazing  and  glass  stain- 
ing. See  NICKEL. 

COBBING.     Ore  sorting. 

COLLAR.  The  top  of  a  shaft  or  winze.  (2)  The  timbering  of  a  shaft 
when  carried  above  the  surrounding  surface. 

COLOR.     A  particle  of  gold  in  the  pan. 

CONCENTRATION.  The  removal  by  mechanical  means  of  ore  from  the 
gangue  or  slime. 

CONTACT.     The  plane  of  meeting  of  two  formations. 

CONTACT  VEIN.  A  vein  along  the  plane  of  contact  of  two  dissimilar 
formations,  consequently  separating  the  two  formations.  Von  Cotta,  28. 

COPPER.  A  metallic  element.  Eed,  hard,  sonorous,  ductile,  malleable, 
non-magnetic,  notable  as  best  available  conductor  of  electric  current. 
Name  derived  from  island  of  Cyprus. 

COST-BOOK  COMPANY.  A  system  of  mining  partnership  local  to  Corn- 
wall and  Devon. 

COUNTRY  ROCK>  The  rock  beyond  the  walls  of  a  lode.  The  strata 
between  or  across  which  the  lode  is  found. 

COURSE  OF  VEIN.  Its  strike.  The  horizontal  line  on  which  it  cuts 
the  country  rock. 

COYOTING.     Spasmodic,  irregular,  surface  mining. 

CRADLE.     A  rocker.     A  short  trough  for  washing  gold. 

CRIBBING.  The  timber  lining  of  a  drift,  shaft,  winze  or  mill-hole.  Tho 
term  also  is  applied  to  rough  or  light  timbering  as  distinguished  from 
sol ;(l  set  work. 

CROSS  COURSE.     An  intersecting  vein. 


GLOSSARY  OF  MINING  TERMS.  697 

CROSS  CUT.     A  level  driven  across  the  course  of  a  vein.    A  short  tunnel. 
CUBIC  EQUIVALENTS.     The  following  table  gives  the  equivalent  in  cubic 
feet  of  a  ton  of  the  ordinary  ores  and  their  gangues  to  be  used  to  calculate 
ore  in  sight,  displacements,  etc.: 

Cubic  Feet. 

One  ton  of  water  (the  unit)  equals 32.03 

Galena  4.39 

Iron  Pyrite 6.6S 

Copper  Pyrites  (yellow) 7.67 

Lead  Carbonate  (cerusite) 4.96 

Zinc  Blende 8.02 

Silicious  Gangue 11  to  16 

Silica  (White  Quartz) 11  to  13 

Granite  or  Gneiss,  about 12 

The  above  figures  are  for  rock  and  ore  in  place.  When  broken  they 
occupy  about  one-fourth  greater  space.  When  the  specific  gravity  is 
known  divide  32.03  by  the  figure  denoting  the  specific  gravity,  and  the 
result  is  the  cubic  contents  of  a  ton  of  the  material.  The  specific  gravity 
of  sulphur  is  2.05.  (32.03-^2.05=15.62  cubic  feet.)  Arthur  Howe 
Carpenter. 

CUT.     To  intersect  a  vein. 

CYANIDE.  A  compound  of  cyanogen  with  a  metal.  The  Cyanide 
Process  of  gold  extraction  is  performed  by  passing  an  auriferous  solu- 
tion of  potassium  cyanide  over  zinc  shavings,  by  which  the  values  are 
precipitated.  Henry  Lewis  on  Gold  Mining.  Thomas  E.  Beaumont. 

DEAD  WORK.  The  developing  of  a  mine  preparatory  to  stoping.  See 
p.  358. 

DEBRIS.  The  loose  fragments  detached  from  the  bed  rock  and  washed 
down,  to  which  the  term  slide  is  more  appropriate;  waste  rock  of  any 
kind.  French. 

DEEP.     The  lower  portion  of  a  vein. 

DENOUNCEMENT.  The  Mexican  or  Spanish  equivalent  to  "location  and 
record"  of  a  claim. 

DESCENSION  THEORY.     The  theory  that  veins  were  filled  from  above. 

DIGGINGS.     Placers.    Amer. 

DIKE.  A  fissure  made  and  filled  by  plutonie  action.  Its  rock  is  most 
commonly  porphyry.  It  is  often  barren,  but  in  some  cases  mineralized ; 
or  may  carry  a  mineralized  selvage  and  so  appear  as  the  wall  of  a  lode. 

DILUVIUM.  A  deposit  of  loose  boulders,  earth,  etc.,  attributed  geo- 
logically to  deposition  from  water. 

DIP.  The  line  of  d.-vlination  of  strata.  Bainbridge.  Yale. — The  angle 
which  a  lode  makes  with  the  plane  of  the  horizon.  Von  Cotta,  26.  The 
departure  of  a  v.'in  from  the  jicrpcn-liculjir  or  from  the  horizontal. 

DITCH.     An  artificial  wpfett  BOOI7«,  flume  or  canal. 


698  GLOSSARY  OF  MINING  TERMS. 

DIVINING  ROD.  A  stick  of  witch  hazel  or  other  like  device  used  in 
prospecting  for  lodes.  Law  v.  Grant,  7  M.  R.  57,  37  Wis.  548. 

*  DOLLAR.     From  the  German  Thaler.    One  hundred  cents.    GOLD  23.22 
grains;  alloy  2.58  grains;  weight  25.8  grains.     Coined  1849-1889.    SILVER 
37114  grains;  alloy  41^4  grains;  weight  4121/4  grains.    Coined  1794-1803, 
1836-1838,  1840-1873,  1878-1904.    Legal  tender  unlimited.     The  Mexican 
dollar  contains  377.17  grains  silver  and  40.62  grains  alloy.    Spanish  dollar 
the  same.    D.  F.  Harris,  Numismatist,  Adams,  N.  ¥. 

DOWNCAST.     A  ventilating  shaft  with  descending  current  of  air. 

DRIFT.  An  underground  passage  driven  horizontally  on  or  with  the 
vein. 

DUMMY  ASSAY.  A  dummy  or  blank  assay  is  the  search  for  any  inter- 
fering element  such  as  impurities  contained  in  the  chemicals  used  in 
making  the  determination  that  might  alter  the  true  returns  of  an  ore.  It 
may  also  be  defined  as  the  addition,  to  the  regular  work,  of  a  chemical 
determination  of  a  known  quantity  of  the  pure  element  sought  for,  to 
ascertain  if  the  method  used  is  applicable  to  the  mineral  on  hand  in  case 
of  doubt.  Victor  Blanc,  Analytical  Chemist,  Denver. 

DUMP.     A  deposit,  or  place  of  deposit,  of  waste  rock  or  tailings. 

ELVAN  COURSE.   A  plutonic  dike.   Lyell.  Argall.  Corn. 

EXPLOITATION.  The  active  working  of  a  mine  as  distinguished  from 
prospecting. 

FACE.     Synonymous  with  breast. 

FATHOM.  A  space  6  feet  forward  and  6  feet  vertical  with  the  width  of 
the  vein. 

FAULT.  A  dislocation  of  strata.  Bainbridge.  Tale.  The  dislocation 
of  a  vein  from  its  original  position;  a  heave;  a  throw.  Von  Cotta,  29. 

FEEDER.  A  small  vein  starting  from  some  distant  point  and  running 
into  a  main  lode.  It  is  practically  synonymous  with  spur.  See  Bain- 
bridge,  2. 

FELDSPAR.  A  vitreous  crystalline  constituent  of  granite,  gneiss,  por- 
phyry and  many  other  rocks. 

FISSURE  VEIN.  A  fissure  or  crack  in  the  earth  across  its  strata,  filled 
with  mineralized  matter. 

FLOAT  or  FLOE.  Loose  quartz  or  ore  detached  from  the  vein  and  found 
below  it.  • 

FLOOR.     The  rock  underlying  a  horizontal  vein  or  deposit. 

FLUME.     A  ditch  carried  in  frame  work  on  or  above  the  surface. 

*  The  die  for  the  dollar  of  1804  was  made  but  not  used  in  that  year. 
Many  years  later  twenty  pieces  were  surreptitiously  struck  by  an  em- 
ployee in  the  mint.    Of  these,  twelve  were  sold  as  cabinet  specimens  and 
the  other  eight  were  surrendered  to  the  superintendent  of  the  mint  on 
discovery  of  the  fact.     One  of  these  was  placed  in  the  U.  S.  coin  collec- 
tion at  Philadelphia,  and  the  other  seven  destroyed. 


GLOSSARY  OF  MINING  TERMS.  699 

FOOT  WALL.     The  under  wall  of  the  vein. 

FORFEITURE.  The  loss  of  possessory  title  as  the  result  of  abandonment 
or  failure  to  comply  with  the  conditions  under  which  the  title  was  held. 

GAD.'    A  small  pointed  wedge. 

GALENA.  A  sulphide  of  lead;  when  not  amorphous  is  crystallized  on 
the  cubic  system;  when  pure  contains  86.6  per  cent  lead,  13.4  per  cent 
sulphur.  Carries  silver  in  greatly  varying  quantities. 

GALLERY.     A  level  or  drift;  applied  chiefly  to  collieries. 

GANGUE.  Crevice  material;  vein  matter;  the  base  material  forming  the 
matrix  of  the  ore. 

GASH  VEIN.  A  vein  which  continues  for  practical  purposes  only  a  short 
distance  below  the  sod,  generally  narrowing  as  it  descends. 

GEODE.  A  rounded  nodule  of  stone  containing  a  cavity  studded  with 
crystals  or  mineral  matter;  the  cavity  in  such  nodule. 

GLORY  HOLE  A  large  funnel-shaped  excavation  from  the  surface  used 
as  a  method  for  extraction  of  ore  without  going  under  cover.  Fred  H. 
Nye,  Denver. 

GNEISS.  A  rock  composed  of  the  same  constituents  as  granite,  but 
foliated  or  stratified. 

GOB  FIRE.     Fire  in  collieries  produced  by  spontaneous  combustion. 

GOLD.  A  metallic  element;  bright  yellow.  Almost  invariably  found 
native  associated  with  a  variable  percentage  of  silver.  One  ounce  pure 
gold  coined  in  U.  S.  dollars  is  worth  $20.67. 

GOSSAN.    See  IRON  HAT. 

GOUGE.  A  soft  selvage;  a  clay  streak  found  following  a  wall,  or  a 
slip  or  an  ore  measure. 

GRANITE.  A  plutonie  crystalline  rock  composed  of  feldspar,  quartz 
and  mica. 

GRASS.     The  surface  over  a  mine.    Corn. 

GRASS  ROOTS.  A  term  used  where  a  working  is  started  from,  or  worked 
up  to,  the  surface. 

GRAY  COPPER.  Tetrahedrite.  An  ore  containing  copper  15  to  42  per 
cent,  combined  with  iron,  zinc,  silver,  mercury,  arsenic  and  antimony. 
It  varies  in  color,  hardness  and  specific  gravity. 

GRIZZLY.  A  grating  to  catch  and  throw  out  the  larger  boulders  from 
the  sluice. 

GRUB  STAKE.  Provisioning  a  prospector  on  a  bargain  to  share  hia 
discoveries. 

HADE.     The  dip  of  the  vein  or  the  incline  of  a  fault.    Corn. 

HANGING  WALL.    The  upper  wall  of  a  vein. 

HEADING.     The  breast  or  face  of  a  working. 

HEADINGS.     The  mass  of  gravel  and  pay  dirt  above  the  head  of  a  sluice. 

HEAVE.     The  horizontal  dislocation  of  one  lode  by  another. 

HIGH  EXPLOSIVES.  Those  of  greater  detonating  force  than  black 
powder. 


700  GLOSSARY  OF  MINING  TERMS. 

HORSE.  A  mass  of  country  rock  between  the  enclosing  walls  of  a  vein. 
To  constitute  a  Horse,  "It  is  necessary  that  the  walls  should  converge 
about  the  mass  below  and  at  both  ends,  but  the  greatest  known  horses 
do  not  converge  over  head.  The  two  walls  coming  to  the  surface  are  in 
some  instances  1,000  feet  apart."  Testimony  of  Clarence  King  in  the 
Dives  Case. 

HUDGE.     An  iron  bucket  for  hoisting. 

HUNGRY.    Barren. 

HYDRAULICS.  That  method  of  placer  mining  where  the  gravel  is 
washed  by  a  stream  operating  under  hydraulic  pressure. 

I.  D.  B.     Illicit  Diamond  Buyer.    Africa. 

IMPREGNATION.  A  metallic  deposit  having  undetermined  limits  in  no 
way  sharply  denned.  Yon  Cotta,  87. 

INCLINE  DRIFT.  A  drift  run  at  an  incline  to  subserve  the  drainage. 
(2)  A  misnomer  applied  to  a  slope  sunk  upon  a  deposit  having  slight 
departure  from  the  horizontal. 

INFILTRATION  THEORY.  That  which  refers  the  origin  of  the  ore  to  the 
deposit  of  mineral  from  water  holding  it  in  solution. 

INJECTION  THEORY.  That  which  refers  the  origin  of  the  ore  to  the 
introduction  of  igneous  fluid. 

•  IN  PLACE.  In  Situ.  Words  used  in  Section  2329  of  the  IT.  S.  Revised 
Statutes,  qualifying  the  words  "quartz  or  other  rock,"  and  to  distinguish 
lode  from  placer  claims.  See  p.  27. 

IN  STROKE.  The  right  to  work  one  mine  through  another  mine.  See 
p.  366. 

IRON.  A  metallic  element,  silvery  white  in  color  when  pure.  Hard, 
tenacious,  malleable  and  ductile.  Hematite  is  its  most  usual  ore  and  it 
is  familiar  as  a  constituent  of  white  pyrites.  The  most  valuable  of  all 
metals  in  its  uses,  but  its  ore  is  of  commercial  value  only  when  contain- 
ing a  heavy  percentage.  Under  fire  and  other  treatment  it  becomes  cast 
iron,  wrought  iron  or  steel.  It  is  plastic  to  the  presence  of  almost  any 
foreign  substance,  phosphorus  and  sulphur  tending  to  weaken,  while 
alloys  of  vanadium,  nickel,  manganese  and  tungsten  in  slight  percentages 
add  almost  incredible  increase  of  strength  and  tenacity. 

IRON  HAT.  (E-isen  Hut.)  The  outcrop  of  a  lode,  it  being  usually  col- 
ored by  the  decomposition  of  the  iron.  Von  Cotta,  38. 

JIG.     A  machine  for  concentrating  ore  by  means  of  sieves.    Corn. 

JUMP.  To  take  forcible  possession  of  a  claim.  (2)  To  relocate  aban- 
doned property. 

KIBBLE.     A  kind  of  hoisting  bucket.     Corn. 

LAGGING.  Poles  or  small  timbers  used  for  spanning  from  one  stull- 
piece  to  another,  for  cribbing  mill-holes  and  for  lining  behind  the  timbers 
of  a  shaft. 

LEAD.     An  objectionable  form  of  the  word  lode. 


GLOSSARY  OP  MINING  TERMS.  701 

LEAD.  A  metallic  element,  bluish  white.  Galena  and  carbonates  are 
its  most  common  ores. 

LEDGE.  A  term  in  use  on  the  Pacific  Slope  synonymous  with  lode.  See 
p.  196. 

LENGTH.  A  certain  portion  of  a  vein  when  taken  on  a  horizontal  line 
on  its  course. 

LEVEL.  A  drift  along  the  vein;  the  word  generally  used  where  there 
are  a  series  of  drifts,  as  first  level,  second  level,  etc.  See  Cambers  v. 
Lowry,  54  P.  816,  19  M.  R.  539. 

LIFT.     The  space  between  two  levels. 

LITTLE  GIANT.  A  jointed  iron  pipe  and  nozzle  decreasing  in  diameter 
with  the  increase  of  the  hydraulic  pressure;  used  in  placer  mining. 

LOCATION.  The  successive  acts  by  which  a  claim  is  appropriated.  (2) 
The  claim  itself. 

LODE.  An  aggregation  of  mineral  matter  containing  ores  in  fissures. 
Von  Cotta,  26.  A  vein  of  metallic  ore.  A  ledge.  Corn.  See  p.  196.  (A 
fault  in  the  country  which  has  become  mineralized.  A.  H.  Green.) 

MANGANESE.  A  hard,  brittle  metallic  element;  a  common  but  (unless 
carrying  20  per  cent  or  more)  valueless  constituent  of  many  ores.  Found 
as  an  oxide.  Used  in  glass  making,  paints  and  chemicals. 

MAN  HOLE.  An  opening  just  large  enough  to  permit  access  between 
two  workings. 

MATRIX.  (Of  the  lode.)  The  country  rock  in  which  the  vein  Is  found. 
(Of  the  ore.)  The  rock  or  earthy  material  inclosing  the  ore;  the  vein- 
stone. Latin. 

MATTE.  One  of  the  products  of  matte  or  pyritic  smelting.  It  consists 
either  of  ferrous  mono-sulphide  (FeS),  or  of  cuprous  sulphide  (CuoS), 
with  ferrous  mono-sulphide  in  varying  proportion.  Franklin  E.  Carpenter, 
Ph.D.  See  SMELTING. 

MERCURY.  Quicksilver.  A  shining  silver- white  metal,  liquid  at  tem- 
perature above  — 40  deg.  Fahr.  Boils  at  669  deg.  Fahr. 

METAL.  An  arbitrary  designation  of  certain  elements  and  alloys, 
usually  hard,  heavy,  bright  and  sonorous,  hence  the  phrase  "metallic 
ring."  No  one  distinction  can  exactly  deliminate  the  metallic  and 
non-metallic  minerals.  Gold,  silver,  copper,  iron,  tin,  lead  and  mercury 
were  the  only  metals  certainly  known  to  the  ancients,  all  others,  being 
more  than  three-fourths  the  total  number  of  the  elements,  are  medieval  or 
modern  discoveries.  Two  certain  metals,  although  having  no  chemical 
affinity,  are  almost  invariably  found  together.  Native  gold  has  always 
a  percentage  of  silver;  uranium  with  vanadium,  cobalt  with  nickel,  lead 
with  zinc,  are  familiar  instances.  No  theory  has  ever  satisfactorily 
accounted  for  this  association. 

METALLURGY.  The  art  of  working  metals,  including  smelting,  refining, 
and  parting  them  from  the  ores. 


702  GLOSSARY  OF  MINING  TERMS. 

MICA.  One  of  the  constituents  of  granite.  "When  separately  crys- 
tallized is  found  in  clear  laminated  plates. 

MILL-HOLE.     A  passage  left  in  the  stope  for  throwing  down  rock  or  ore. 

MILL-RUN.  The  returns  of  a  lot  of  ore;  the  assay  of  ore  in  quantity 
as  distinguished  from  a  specimen  assay. 

MINE.  Any  excavation  made  for  mineral.  (2)  An  opened,  as  dis- 
tinguished from  an  untouched  deposit.  (3)  Underground  as  distinguished 
from  superficial  workings  or  quarries. 

MINERAL.  One  of  the  three  grand  divisions  of  the  natural  world — 
animal,  vegetable,  mineral — f.  e.,  any  non-organic  substance.  (2)  In  a 
legal  sense,  any  inorganic  product  of  the  earth  of  greater  commercial 
value  than  the  soil  itself.  See  p.  256. 

MINER  's  INCH.  There  is  an  attempted  statutory  definition  in  Colorado 
R.  S.  See.  7026  which  is  obscure  and  inexact.  Orifices  constructed  as  this 
statute  directs  will  deliver  through  each  square  inch  of  opening  a  quantity 
which  varies  from  1.516  to  1.632  cubic  feet  of  water  per  minute.  The 
custom  among  engineers  is  to  take  1.560  cubic  feet  of  water  per  minute 
as  the  equivalent  of  an  inch.  Using  this  value  for  an  inch,  38.4  inches 
is  equal  to  a  flow  of  one  cubic  foot  per  second.  By  section  3330  the  State 
Engineer  is  required  to  use  in  all  his  records  the  cubic  foot  per  second  as 
"the  unit  of  measurement  of  flowing  water,"  and  the  cubic  foot  as  the 
unit  of  measurement  of  volume.  Charles  W.  Comstock,  State  Engineer. 

MiNERjs  RIGHT.     The  license  to  locate,  used  in  Australia. 

MISPICKEL.     A  white  pyritic  ore  of  arsenic  and  iron. 

MOLYBDENITE.  A  sulphide  of  the  metal  Molybdenum;  found  in  scales 
with  metallic  lustre  closely  resembling  tin  foil  or  gray  copper;  also  in  a 
granular  form,  showing  steel  blue  flake  crystals.  Valuable  and  marketable 
when  concentrated,  as  an  alloy  for  high  grade  steel.  A.  B.  Fremel. 

MONAZITE.  A  valuable  sand  obtained  by  sluicing,  carrying  thorium 
oxide  used  in  manufacture  of  incandescent  gas  mantles. 

MOYLE.  A  drill  or  short  bar  sharpened  to  a  point,  used  in  cutting 
hitches  and  in  broaching. 

MUCKER.     The  man  who  fills  the  bucket  or  tram. 

MUNDIC.  Copper  or  iron  pyrites.  White  Mundie  is  mispickel  or 
arsenical  pyrites. 

NICKEL.  A  hard,  malleable,  ductile,  white,  magnetic  metal.  Used  in 
coinage  as  an  alloy  with  copper,  for  ornamental  plating  and  to  harden 
armor  plate.  Mined  at  Sudbury,  Ontario,  and  in  New  Caledonia.  Gener- 
ally associated  with  cobalt,  and  both  names  are  those  of  the  guardian 
demons  of  superstitious  miners. 

NODULE.     A  small,  rounded,  stony  concretion. 

OCHRE.  Any  soft,  earthy,  metallic  oxide.  A  decomposition  formed  into 
a  clay-like  substance  which  may,  or  may  not,  contain  mineral  value. 

OPEN  CUT.     A  longitudinal  surface  working  not  entering  cover. 

OPERATOR.     One  who  works  a  mine  either  as  owner  or  lessee. 


GLOSSAEY  OF  MINING  TERMS.  703 

ORE.  The  mechanical  or  chemical  compounds  of  the  metals  with  baser 
substances.  The  conventional  divisions  in  the  ore  market  are :  DBY  ORE  : 
An  ore  which  does  not  contain  any  lead,  or  less  than  5  per  cent.  MILLING 
ORE:  A  dry  ore  that  can  be  amalgamated  or  treated  by  leaching  and 
other  processes ;  usually  these  ores  are  low  grades,  free,  or  nearly  so,  from 
base  metals.  SHIPPING  ORE:  Such  as  is  better  adapted  to  smelting  than 
any  local  treatment.  Any  ore  of  greater  value  when  broken  than  the  cost 
of  freight  and  treatment.  REFRACTORY  ORE:  An  ore  containing  in 
quantities,  arsenic,  antimony  or  other  base  metals,  which  prevent 
economical  treatment  by  usual  and  available  processes.  W.  J.  Chamberlain. 

ORE  IN  SIGHT.  Ore  disclosed  between  drifts  and  shafts  (or  winzes) 
so  that  it  can  be  measured,  on  the  assumption  that  if  exposed  on  four 
sides  or  three  sides  it  presumably  exists  in  the  body  of  the  stope  the  same 
as  in  the  exposures.  If  exposed  on  two  sides,  it  is  counted  as  in  sight  to 
the  extent  of  one-half  the  contents  of  the  stope.  Ore  between  drift,  shaft 
and  surface  is  ore  in  sight  after  allowance  for  depth  of  slide.  Ore  exposed 
on  only  one  side  is  not  ore  in  sight.  Kirby  Thomas. 

ORE  RESERVES.     The  ore  body  where  exposed  ready  for  stoping. 

OUTCROP.     That  portion  of  a  vein  appearing  at  the  surface. 

OUTPUT.     The  gross  product  of  a  mine. 

PAN.     An  iron  basin  used  in  gold  prospecting. 

PATCH.     A  small  placer  claim  outside  of  the  main  gulch. 

PATIO.  A  yard  or  court.  The  space  where  ore  is  mixed  and  amal- 
gamated by  tread  of  horses.  Sp. 

PATIO  PROCESS.     The  Mexican  method  of  amalgamation  of  silver  ores. 

PAY  ROCK.  The  lode  material  in  which  the  mineral  or  pay  is  found. 
See  QUARTZ. 

PAY  STREAK.  The  ore  body  proper,  or  the  seam  of  decomposed  material 
which  takes  its  place  and  preserves  the  continuity  of  the  ore  body. 

PEGMATITE.  A  special  form  of  granite.  "Pegmatites  are  essentially 
coarse  grained  silicious  dikes,  not  involving  great  amounts  of  mineralizers 
at  the  outset,  but  along  their  sides  have  afterwards  circulated  vapors 
which  have  contributed  to  the  production  of  coarse  crystallization.  Finally 
highly  heated  silicious  waters  have  brought  in  quartz  and  at  a  last  stage 
various  rare  elements  have  been  introduced."  J.  B.  Hastings,  Mining 
Indmtry,  1908,  p.  876. 

PENT  HOUSE.  A  shed  or  horizontal  barricade  across  one  end  of  a  shaft, 
made  of  strong  timbers  loaded  with  rock  to  protect  against  any  accidental 
fall  from  above.  Corn. 

PERTENENCIA.  The  Mexican  equivalent  of  a  location  or  clajm.  Size, 
100  metres  square,  about  328  feet. 

PETROLEUM.  Bock  oil,  medicinally  used  at  an  early  date  under  the 
name  of  Seneca  oil.  In  commercial  usage  of  today  the  word  "oil"  has 
generally  superseded  "petroleum."  In  color,  some  shade  of  brown  or 
green.  Its  chemical  elements:  Hydrogen  and  carbon.  By  geologists 


704  GLOSSARY  OF  MINING  TERMS. 

considered  a  decomposition  of  organic  matter,  but  this  theory  not  abso- 
lutely proven.  Its  main  sources:  United  States,  Canada,  Mexico,  Baku 
(Russia),  Bukowina  (Hungary),  Burmah.  Its  products:  Gasoline, 
naphtha,  lubricating  oil,  paraffin,  and  innumerable  by-products.  Found 
by  drilling  at  depths  as  great  as  5000  feet.  The  oil  industry  has  intro- 
duced many  new  terms  or  given  a  new  and  technical  meaning  to  words 
in  common  use,  to-wit:  PARAFFIN:  A  wax  by-product  of  crude  oil.  It  is 
the  base  of  all  high  grade  oil  that  is  capable  of  being  refined.  ASPHALTUM 
BASE:  Oil  having  an  asphalt  base,  of  low  gravity  and  not  capable  of 
being  refined.  Used  chiefly  for  fuel  oil.  ROTARY  DRILLING:  A  form  of 
drilling  required  in  certain  ground  where  the  hole  will  not  "stand  up," 
and  necessitates  forcing  a  pipe  downward  with  a  circular  motion.  CABLE 
DRILLING  :  The  customary  method  used  in  drilling  in  shale  and  rock  soils 
in  which  the  tools  are  suspended  with  a  wire  or  Manila  cable  and  alter- 
nately rise  and  fall.  CREW:  Consists  of  a  driller  and  a  tool  dresser. 
TOWER:  A  day's  work  of  a  drilling  crew.  A  tower  runs  from  12  noon 
until  12  midnight;  and  from  midnight  until  noon.  SPUDDING  IN:  The 
actual  commencement  of  drilling  after  the  rig  is  completed.  The  first 
abrasion  of  the  soil  made  by  the  drill.  This  is  considered  the  actual 
commencement  of  drilling  operations.  ROYALTY  INTEREST:  A  percentage 
of  the  gross  output  of  oil  paid  to  the  owner  of  the  land  free  of  cost. 
Any  other  form  of  interest  requires  participation  in  expenses.  OFF-SET 
WELL:  Where  a  well  has  been  drilled  on  an  adjoining  property  close  to 
the  line,  it  is  generally  required,  either  by  law  or  by  the  contract,  to 
drill  a  well  within  what  are  called  the  protecting  lines,  thus  off-setting 
the  producing  well.  FLOWING  WELL:  A  well  which  flows  naturally. 
PUMPING  WELL:  A  well  which  accumulates  a  certain  amount  of  oil  per 
day,  which  it  is  necessary  to  bring  to  the  surface  by  pumping.  VACUUM 
PUMP:  A  form  of  pumping  that  produces  a  vacuum  in  the  well,  thus 
sucking  in  oil  from  adjoining  territory.  This  form  of  pumping  is 
forbidden  in  some  fields.  SHOOTING  A  WELL:  Filling  the  hole  through 
the  oil  sand  with  a  high  explosive  (generally  nitro-glycerin)  which  when 
exploded  increases  the  collection  area.  NATURAL  PRODUCTION:  The  pro- 
duction from  a  well  which  has  not  been  shot.  FLUSH  PRODUCTION:  The 
first  production  of  oil  per  day  from  a  well.  (This  may  be  either  with  or 
without  shooting.)  SETTLED  PRODUCTION:  The  amount  of  production  of 
oil  per  day  after  the  first  agitation  has  ceased  and  the  well  has  reached 
an  ordinary  average  producing  basis.  OIL  SAND:  A  porous  rock  forma- 
tion in  which  oil  accumulates.  GAS  CLAUSE:  A  provision  for  an  annual 
rental  to  be  paid  to  the  lessor  for  the  sale  of  gas  from  a  well.  CASING  :  An 
outer  pipe  inserted  in  oil  wells  to  prevent  the  caving  of  the  sides  and  to 
shut  out  water.  This  remains  the  property  of  the  lessee  and  is  removed 
upon  the  abandonment  of  the  well.  CLEANING  OUT:  A  process  required 
to  remove  cavings,  -floating  sand  and  all  accumulations  in  order  to 
increase  the  production.  CASING  HEAD  GAS:  Gas  from  a  producing  oil 


GLOSSARY  OF  MINING  TERMS.  705 

well  which  is  collected  at  the  casing  head  and  saved  separately  from  the 
oil,  and  usually  carries  a  large  percentage  of  gasoline,  which  may  be 
saved  by  compression.  PLUGGING:  The  insertion  of  a  heavy  plug  in  and 
above  the  oil  sand  and  filling  in,  to  prevent  water  from  flooding  the  oil 
sand.  Often  required  by  law  in  wells  that  are  failures.  G.  L.  Warson, 
Denver. 

PHONOLITE.  A  volcanic  rock  of  porphyritic  texture;  the  crystals  in 
some  cases  so  minute  as  to  be  imperceptible  unless  magnified;  thin  slabs 
ring  when  struck,  whence  the  name,  literally,  sounding  stone. 

PINCH.     A  narrow  space  where  the  walls  come  close  together. 

PIT.  A  shallow  shaft.  In  Cornwall  the  working  shaft  or  the  whole 
mine  is  called  the  PIT. 

PITCH.     The  dip  of  a  lode. 

PLACER.  A  deposit  of  gold  not  in  place.  Applied  to  all  classes  of  gold 
deposit  including  cement  and  channel  claims,  except  lodes  in  place.  For 
special  meaning  under  Sec.  2329  U.  S.  Rev.  St.  see  p.  258.  Gold,  platinum, 
tin,  gems  and  monazite  are  the  minerals  won  by  placer  washing. 

PLAT.  A  small  chamber  on  the  side  or  sole  of  a  level  where  it  intersects 
a  shaft,  made  to  facilitate  dumping.  Where  it  is  cut  in  the  sole  it  is 
called  a  trip-plat.  Corn. 

PLATINUM.  A  rare  metal  of  steel  gray  color,  very  infusible,  used  in  the 
arts.  More  valuable  than  gold.  Always  associated  with  iridium  and 
osmium.  Mined  in  the  Ural  Mountains.  To  be  looked  for  in  the  black 
sand  of  placers. 

POCKET.     A  detached  ore  body;  a  nest  of  ore. 

POCKETY.  A  term  applied  to  the  mine  where  the  pay  ore  occurs  in 
small  detached  bodies  with  intervals  of  poor  ore  or  barren  material.  The 
word  implies  a  slur  on  the  mine.  Paull  v.  Halferty,  9  M.  R.  149; 
63  Pa.  46. 

PORPHYRITIC  GRANITE.  A  base  of  granite  containing  prominent  crystals 
of  feldspar. 

PORPHYRY.  A  general  term  including  such  plutonic  rocks  as  exhibit 
well  formed  crystals,  usually  of  feldspar,  in  a  finely  granular  or  compact 
base  of  the  same.  Gr. 

PROSPECTING.  A  search  for  deposits;  applied  both  to  the  seeking  for 
undiscovered  veins  and  to  the  investigation  of  the  value  of  known  veins  by 
exploration. 

PYRITES.  (White.)  A  bi-sulphide  of  iron.  (Yellow.)  A  sulphide  of 
copper.  Bright  crystallized  metallic  looking  and  very  common  gold 
bearing  ores  usually  low  grade  and  spoken  of  in  common  parlance  as 
the  "iron."  Gr. 

PYRRHOTITE.  The  mono-sulphide  (Fe7S8)  of  iron.  Almost  always 
nickel  bearing.  The  principal  ore  at  Sudbury.  Dr.  Carpenter. 

QUARRY.     Any  open  work  in  rock  on  a  plan  of  excavating  the  entire 


706  GLOSSAEY  OF  MINING  TERMS. 

mass,  as  distinguished  from  working  a  seam  or  vein  by  shafts  01 
approaches  under  cover. 

QUARTZ.  Silica.  A  constituent  of  granite.  The  free  gold  of  Cali- 
fornia being  found  in  quartz,  the  word  was  applied  to  the  gangue  of  such 
lodes  and  so  to  other  forms  of  vein  matter;  until  it  is  now  used  vaguely 
to  mean  the  ore,  the  float,  the  gangue,  or  that  part  of  the  gangue  which 
indicates  the  pay  streak.  In  the  Acts  of  Congress  it  is  used  with  the 
word  rock  (quartz  or  other  rock)  in  the  sense  of  pay  rock. 

QUARTZITE.  A  metamorphosed  sandstone;  a  rock  containing  usually 
about  98  per  cent  silica  with  a  small  percentage  of  foreign  materials, 
principally  iron,. 

QUICKSILVER.    See  MERCURY. 

RADIUM.  A  metallic  element  discovered  in  1898  by  elimination  from 
ores  of  uranium.  It  seems  to  possess  the  photographic  powers  of  the 
X-Eay,  has  a  unique  spectrum,  is  a  powerful  but  dangerous  therapeutic, 
burns  paper,  decomposes  water  and  has  a  dynamic  force  beyond  any  other 
known  element.  The  world's  production  amounts  to  but  a  few  ounces 
and  its  money  value  is  greater  than  the  price  of  diamonds. 

RAISE.     A  shaft  or  winze  which  has  been  worked  from  below. 

RAND.    Range  of  hills.    Dutch. 

REEF.     An  Australian  term  for  lode  or  ledge. 

REGULUS.     The  alchemic  term  for  ' '  matte. ' ' 

RHYOLITE.  A  name  common  to  igneous  rocks  of  a  wavy  texture  indica- 
tive of  movement  or  flowing  when  in  a  fluid  state. 

RIFFLE  BLOCKS.  Cross  sections  of  timber  set  on  the  floor  of  a  sluice 
with  irregular  spaces  between,  in  which  the  gold  settles.  American. 

ROB.  To  gut  a  mine;  to  work  for  the  ore  in  sight  without  regard  to 
supports,  reserves  or  any  future  considerations. 

ROCKER.     See  CRADLE. 

ROOF.  A  stratum  or  rock  overlying  a  deposit,  or  flat  vein.  The  top  or 
back  of  any  working. 

ROYALTY.     The  dues  to  the  lessor. 

BUSTY.  Oxidized.  Ore  coated  with  oxide.  Applies  to  gold  which  will 
not  easily  amalgamate. 

SCALE.     A  loosened  fragment  of  rock  threatening  to  break  off  and  fall. 

SCHIST.  Crystalline  or  metamorphie  rock  with  slaty  structure;  usually 
carrying  mica,  sometimes  argillaceous. 

SEGREGATIONS.  All  those  aggregations  of  ore  having  irregular  form 
but  definite  limits.  They  differ  from  beds  and  lodes  by  the  irregularity 
of  their  form;  from  impregnations  by  their  definite  limits.  Von  Cotta  81. 

SELVAGE.  A  lining;  a  gouge;  a  thin  band  of  clay  often  found  in  the 
vein,  upon  the  wall. 

SET.     Portion  of  ground  taken  by  a  tributer. 

SHAFT.  A  pit  sunk  from  the  surface;  an  opening  more  or  less  perpen- 
dicular sunk  on,  or  sunk  to  reach,  the  vein. 


GLOSSARY  OF  MINING  TERMS.  707 

SHIFT.  (1)  A  miner  'a  turn  or  spell  of  work.  Webster.  Two  shifts  is 
the  equivalent  of  16  to  20  hours  work,  three  shifts,  24  hours  work,  of  one 
man.  (2)  All  the  miners  who  go  on  and  off  at  the  same  hours  are  known 
as  one  shift.  In  large  mines  there  are  usually  three,  styled  the  day,  night 
and  graveyard  shifts.  Benj.  C.  Catren,  Jr. 

SILICA.  In  chemistry  it  means  Silicon  dioxide.  Formula,  SiOg.  It  is 
ordinary  quartz.  Between  ore  buyers  and  sellers  everything  not  soluble 
in  nitric  and  hydrochloric  acids  is  counted  as  "silica" — a  determinatiow 
often  manifestly  unjust  to  the  seller.  Franklin  E.  Carpenter,  Pk.  D. 

SILVER.  A  metallic  element;  the  whitest  of  the  metals.  One  oz.  pun 
silver  coined  in  U.  S.  dollars  is  worth  $1.2929  gold. 

SILVER  GLANCE.  An  ore;  when  pure  contains  87  per  cent  silver  and 
13  per  cent  sulphur. 

SKIP.     A  square  hoisting  bucket  running  on  guides,  or  in  grooves. 

SLATE.  A  sedimentary  clay,  hardened  into  rock,  which  splits  readily 
into  plates.  Where  lamination  is  not  clear  it  is  termed  shale.  Slate  of 
commercial  value  is  rare  and  is  quarried  principally  in  Wales,  Vermont 
and  Pennsylvania. 

SLICKENSIDES.  Smooth,  polished  portions  of  the  wall  or  of  some 
vertical  plane  in  the  lode,  caused  by  friction.  It  may  occur  on  the  ore 
itself.  German. 

SLIDE.  (1)  One  kind  of  fault — the  vertical  dislocation  of  a  lode. 
(2)  The  mass  of  loose  rock  overlying  either  lode  or  country. 

SLOPE.     An  opening  driven  upon  the  inclination  of  the  vein. 

SLUICE.  A  series  of  boxes  set  in  line  and  floored  with  riffle  blocks  to 
catch  the  gold  in  a  placer  mine. 

SMELTING.  The  reduction  of  metals  from  their  ores  in  furnaces.  It  is 
a  form  of  the  word  melt.  In  smelting  the  ore  is  melted.  In  other 
processes  it  is  roasted.  MATTE  SMELTING.  A  process  of  smelting  where 
the  values  in  the  ores  are  collected  in  an  iron  and  copper  sulphide 
(regulus)  technically  called  ' '  matte. ' '  When  iron  and  copper  pyrites  are 
added  to  the  charge  for  their  fuel  value  as  well  as  their  matte-forming 
properties,  the  process  is  called  "pyritie  smelting."  Franklin  B.  Car- 
penter, Ph.  D. 

SOLE.     The  floor  of  a  horizontal  working. 

SOLLAR.     Any  platform  or  wooden  floor  or  covering  in  a  working.  Corn. 

SOUGH.     A  drain.    Eng. 

SPAR.  A  general  term  applied  to  rock  with  distinct  cleavage  and  lustre. 
Iceland  spar,  a  definite  mineral  having  double  refraction,  has  become 
rare,  and  is  used  for  optical  purposes. 

SPELTER.     Commercial  zinc. 

SPILING.  Timbering  used  in  quicksand  or  loose  ground  where  laths 
are  driven  behind  timbers  and  kept  flush  with  the  heading. 

SPRAG.  A  temporary  timber  used  to  hold  ground  until  permanent 
supports  can  be  placed  to  hold  working  platform.  A  light  stull. 


708  GLOSSARY  OF  MINING  TERMS. 

SPUE.     A  branch  or  off-shoot  from  a  larger  vein. 

STAMPS.     Machine  for  crushing  ores  by  vertical  stroke. 

STANNARY.     A  tin  mine.     From  the  Latin,  Stannum. 

STOPS.  The  working  above  or  below  a  level  where  the  mass  of  the  ore 
body  is  broken.  Corn. 

STOPING.  The  act  of  breaking  the  ore  above  or  below  a  level;  when 
done  from  the  back  of  the  drift  it  is  called  overhand  or  back  stoping; 
when  from  the  sole  it  is  underhand  stoping. 

STRATUM.  A  bed  of  rock  or  earth  of  any  kind.  Dana.  The  plural 
is  strata. 

STRIKE.  The  extension  of  a  lode  or  deposit  on  a  horizontal  line. 
Von  Cotta  19.  Synonymous  with  TREND  and  COURSE. 

STULLS.  Cross  timbers  at  the  foot  of  a  stope.  Any  extra  heavy 
timbers. 

SUBLIMATION  THEORY.  That  which  refers  the  filling  of  fissures  to 
material  deposited  from  ascending  steam,  or  by  condensation  from  a 
gaseous  condition,. 

SULPHATE.     The  combination  of  a  metal  with  both  sulphur  and  oxygen. 

SULPHIDE.     The  chemical  union  of  sulphur  with  a  metal. 

SULPHUR.  A  non-metallic  element.  Yellow,  fusible,  brittle,  insoluble ; 
except  Oxygen,  the  most  common  base  combining  element  in  metallic 
ores,  such  as  Pyrites.  As  a  commercial  product  most  commonly  mined 
from  old  volcanic  craters.  Greatest  production,  Sicily.  Largest  deposits 
in  United  States,  Louisiana;  Black  Rock,  Utah;  Sun  Light  Basin,  Big 
Horn  County,  Wyo.  T.  S.  Todd,  Importer,  25  Broad  Street,  N.  Y. 

SULPHURET.  A  sulphide.  Sulphide  is  the  more  recent  and  approved 
term. 

SUMP.  The  extension  of  a  shaft,  forming  a  pit  for  the  collection  of 
water.  Corn. 

SYLVANITE.  A  gold-silver-tellurium  combination.  Pure  steel  gray  to 
silver  white,  inclining  to  pale  yellow.  Gold  24.5;  silver  13.4;  tellurium 
62.1.  Usually  in  fine  grains  or  crystals.  A.  B.  Frenzel. 

SYNDICATE.  An  association  or  council  of  persons;  in  use  since  the  Civil 
War  to  designate  any  combination  formed  to  carry  out  a  large  financial 
enterprise. 

TACKLE.     The  windlass,  rope  and  bucket.     Corn. 

TAILINGS.  The  refuse  discharged  from  the  tail  end  of  a  sluice,  or 
washed  from  any  sort  of  placer  working.  The  waste  rock  left  after  any 
process  of  ore  separation. 

TELLURIUM.  A  silver  white,  brittle  substance,  combining  with  many 
metals  to  form  tellurides  in  the  same  manner  as  sulphur  forms  sulphides. 

TIN.  A  soft,  malleable,  white  metal.  Mined  in  Cornwall  since  pre- 
historic times.  Used  commercially  as  a  coating  to  thin  sheets  of  iron, 
and  as  a  factor  in  many  alloys. 

TRAM.     The  carriage  of  ores  on  rails  or  guides.     The  word  is  derived 


ULOSSAKV  OF   MIXING   TERMS.  7l9 

from  the  name  of  James  Outram,  who  first  laid  iron  rails  in  a  colliery 
in  1776. 

TREND.     The  longitudinal  course  or  strike  of  a  lode. 

TRIBUTERS.  Miners  who  work  a  set,  or  piece  of  ground,  taking  the 
proceeds  as  wages,  after  royalty  deducted,  but  who  work  under  direction 
of  the  owners  and  hold  no  possession  or  title  as  lessees. 

TROUBLE.     A  fault. 

TUNDRA.     The  moss,  or  scrub-covered,  regions  of  the  Arctic. 

TUNGSTEN.  (WolA-am.)  A  hard,  heavy,  grayish  white  metal,  that 
fuses  with  great  difficulty.  A  steel  hardening  alloy.  Its  ores  are  Scheelite, 
Huebnerite  and  Wolframite,  all  of  heavy  specific  gravity.  Wolframite  is 
similar  to  iron  in  appearance,  but  when  scratched  shows  reddish  brown. 
Huebnerite  shows  reddish  brown,  straight  and  fan-shaped  crystals. 
Matrix  of  both,  usually  white  quartz  or  buff-colored  quartzite. 
A.  B.  Frenzel. 

TUNNEL.  A  horizontal  excavation  starting  at  the  surface  and  driven 
across  the  country  for  discovery  or  working  purposes. 

TUT  WORK.  Work  paid  for  by  the  foot  as  distinguished  from  tribute 
work. 

UPCAST.     A  ventilating  shaft  where  the  air  ascends. 

URANIUM.  This  metal  occurs  in  the  mineral  uraninite  or  pitch  blende  as 
an  oxide;  also,  associated  with  vanadium  in  the  mineral  carnotite.  The 
color  of  pitch  blende  varies  from  gray  to  black;  that  of  the  carnotite  is 
lemon  yellow.  Eadium  occurs  in  these  ores  and  may  be  prepared  from 
them.  Wm.  P.  Headden. 

VANADIUM.  This  metal  occurs  widely  distributed,  but  is  rarely  met 
with  in  large  quantities.  The  largest  known  deposit  occurs  near  Placer- 
ville  on  the  San  Miguel  River  in  Colorado,  in  a  sandstone  to  which  it 
gives  a  green  color.  Vanadium  alloys  with  iron,  forming  ferro-vanadium, 
used  in  making  certain  high  grade  steels.  It  is  best  known  in  commerce 
as  vanadie  acid.  V2O5.  A.  B.  Frenzel,  Denver. 

VEINS.  Aggregations  of  mineral  matter  in  fissures  of  rocks. 
Von  Cotta  26;  Bairibridge  8.  The  word  vein  has  a  broader  scope  than 
lode,  including  non-metallic  beds.  See  p.  196.  It  is  also  applied  in 
working,  to  smaller  seams  threading  the  greater  deposit.  See  VENA 
and  VET  A. 

VENA.     A  small  vein  or  the  branches  of  the  Veta,  or  main  vein.   Span. 

VETA.     A  main  vein.    VETA  MADRE.    The  mother  vein.    -Span. 

Vuo.     A  cavity  in  the  ore  or  rock. 

WALL.  The  plane  of  the  country  where  it  touches  the  side  of  the  vein, 
when  used  in  reference  to  lodes.  The  side  of  a  level  or  drift,  when  used 
with  reference  to  the  workings.  See  page  226. 

WHEAL.  A  pit  or  hole  in  the  ground.  A  mine.  The  names  of  most 
mines  in  Cornwall  are  preceded  by  the  word  Wlical.  Old  form  Huel.  Corn. 


710  GLOSSARY  OF  MINING  TERMS. 

WHIM.  A  machine  for  raising  the  bucket  by  means  of  a  revolving 
drum. 

WHIP.  An  apparatus  for  raising  the  bucket  with  rope  and  pulleys,  by 
horse  power  on  a  straight  drive. 

WINZE.  A  shaft  sunk  from  a  level;  not  necessarily  connecting  two 
levels. 

ZINK.  A  metallic  element;  bluish  white;  generally  found  as  a  sulphide 
(blende)  or  as  a  carbonate  (calamine). 


TABLE  OF  SYMBOLS,  ETC. 


711 


E.B  .   3 

•o  5'  • 


os  w  to  oo  I-"  *.  co  to  co  o>  o  to  «o  w  «o  o  v\  ocn  «o 

en  h->  oo  4^  oo  po  to  <i  to  p  ^s  en  v\  oo  ps  p  ^  ^i  pi  ^i 

to  b  to  b  *-<i  U  '*.  en  b  co  oo  b  to  o>  b  *<»  «o  to  oo  co 

-4                  O)  OO        00      CO   Ipk 


O 

I 

yl 
m 


2 

Ci 


—  —  M  )->  tO      |_|   M    i-''-"' 

^  en  oo  jo  ri  CT  j-»  o>  to  to  p  p  ;  j-«  oo  po  w  <i  M  <i  p  <x  oo  oo  jo  en  e»  to  2  g 

U  w  ^  M  to  bo  b  to  b  b>  <»  w  •  to  "oo  b>  bi  en  co  oo  to  ?o  w  9  90  <i  '-<i  bs  «•  g; 

wo   o«oo   cn~ioww.  ^  o  o  <oo-»o»cn  rf^  o  o  to  w  i-io^  g> 


I*  CM  I 


r 


i 


COCOC7I         COW 


'?3 


*-iJ*! 


• 


»       -3 


TABLE  OF  CASES  CITED 


PAGE 

Abbott  v.   Smith 378 

Adams  Co.  v.  Senter 408 

Ah  He  v.  Crippen 392 

Ah  Kle  v.  McLean 391 

Ahren  v.  Dubuque  Co 232 

Ajax  Co.  v.  Hilkey 215 

v.  Triumph  Co 469 

Alaska  Ex.  Co.  v.  North 'n  Co.  340 

Alaska   Placer 599 

Alberson  v.  Elk  Creek  Co....  369 

Alder  Gulch  Co.  v.  Hayes 241 

A.  Leschen  Co.  v.  Allen 405 

Alexander  v.  Sherman 158 

Alice  Co.  v.  Street 284 

Allen   v.   Bell 456 

v.  Blanche  M.  Co.  . .  .347,  606 

v.  Dunlap 462 

Allison's   Appeal 672 

Alta  Co.  v.  Benson  Co 118 

Altoona  Co.  v.  Integral  Co. ... 

122,  123,  390,  438,  477,  616 

Amador  Co.  v.  DeWitt. .  .248,  317 

v.  South  Spring  Co 213 

Ambergris  M.  Co.  v.  Day 

28,  107,  203,  475 

American  Bauxite  Co.  v.  Board 

of  Equalization 323 

American  Co.  v.  Lindsley 405 

v.  Williams 681 

American  Onyx  Co.,  In  re. ...  595 

Ames  v.  Goldfield  Co 412 

Amy-Silversmith  Case 211 

Anaconda  Co.  v.  Butte  Co.  417,  463 
Anaconda   Co.  v.   Pilot   Butte 

Co 189,  215 

Anchor  v.  Howe 60S 

Anderson  v.  Caughey. .  .51,  67,  121 


PAGE 

Anderson  v.  Hapler 432 

v.  Robinson 121,  132,  140 

v.  U.  S 664 

Andrews  v.  Ladd 329 

Anthony  v.  Jillison 269 

Anvil  Co.  v.  Code 124,  141 

v.  Humble 427,  428 

Ardesco  Co.  v.  Gilson 454,  457 

Argentine  Co.  v.  Benedict 410 

v.  Terrible  Co 

32,  210,  218,  226 

Argonaut  Co.  v.  Kennedy  Co. .  209 

v.  Turner 176,  195 

Arizona  Cop.  Co.  v.  Gillespie . .  466 
Arkansas  Val.  Co.  v.  Belden  Co.  427 

Arkoosh  v.  Sorrenson 382 

Armstrong  v.  Lower 

39,  150,  183,  195,  230 

Armstrong  v.  Maryland  Co ...  354 

Arnett  v.  Linhart 239 

Arnold  v.  Baker 435 

Arnold  v.  Goldfield  Co 10,  369 

Asbestos  Co.  v.  Durand 455 

Ashland  Co.  v.  Wallace 454 

Ashman  v.  Wigton 300 

Aspen  Co.  v.  Eucker 472 

Astiazaran  v.  Santa  Kita  Co . .  392 
Atchison  v.  Peterson.  .234,  288,  280 

Atkins  v.  Hendree 120,  188 

Atkinson  v.  Crowe  M.  Co 444 

Atlantic  Co.  v.  Ropos  Co 3?  t 

Attersoll  v.  Stevens 44  *) 

Attwood  v.  Fricott 21,  440 

Aurora  Hill  Co.  v.  85  Co.  .118,  18il 

Austin  v.  Berlin 402 

Axiom  Co.  v.  Little 611 

v.  White...  .  137 


Aye  v.  Philadelphia  Co 

v.  Daly  Co 45o          109,  364,  679 

(713) 


714 


TABLE  OF  CASES  CITED. 


PAGE 

7.  Thornton 445 

Badger  Co.  v.  Stockton  Co.  148,  442 

Baer  B.  Co.  v.  Wilson 236 

Bagley  v.  Republic  Co 367 

Bailey  v.  Bond 381 

v.  Fredonia  Co 382 

Baillie  v.  Larson 317 

Baker  v.  Pittsburg  C.  Co 300 

Bakersfield  Co.,  In  re 165 

Ballard  v.  Golob 147 

Barandum  v.  Barandura  M.  Co.  346 
Barker  v.  Dale 112 

v.  Montana  Co 410 

Barnard  v.  Monongahela  Co . .   674 

v.  McKenzie 329 

v.  Roane  Co 408 

v.   Sherley 290 

Barnsdoll  Co.  v.  Leahy 681 

Barrett  v.  Indiana N. 452 

Bassick  Co.  v.  Schoolfield 329 

Batterton  v.  Douglas  M.  Co.. 

118,  570 

Baxter  Co.  v.  Patterson 58 

Bay  v.  Oklahoma  Co 252 

Bay  State  Co.  v.  Brown 437 

Beals  v.  Cone 30,  32, 

43,  45,  61,  67,  128,  137,  166,  621 

Bean  v.  Pioneer  Co 455 

Beardsley  v.  Kansas  N.  G.  Co.  668 

Beaver  Co.  v.  St.  Vrain  Co 111 

Beck  v.  O'Connor 325 

Becker  v.  Pugh 14,  22, 

148,  161,  437,  439,  443,  612,  625 

Behrens  v.  Cloudy 371 

Belcher  Co.  v.  Deferrari 131 

Belk  v.  Meagher 

41,  100,  120,  134,  135,  439 

Bell  v.  Adams 429 

—  v.  Bed  Eock  Co 4,  113 

v.  Denson 479 

v.   Skillicorn 222 

Bellevue  Co.  v.  Mooney 455 

Bellsea  v.  Tindall 366 


PAGE 

Bennett  v.  Harkraden .  .  92,  622,  634 

v.  Red  Cloud  Co 395 

Bennie  v.  Becker  Co 346 

Bennitt  v.  Whitehouse 474 

Benson  Co.  v.  Alta  Co 

116,  118,  385,  447 

Bentley  v.  Brossard 368 

Benton  v.  Hopkins 468,  626 

Berea  Co.  v.  Kraft 457 

Berg  v.  Koegel . ...  97 

Berkey  v.  Berwind-White  Co. .  463 

Bernard  v.  Parmelee 624 

Berry  v.  Frisbie 380 

Bertha  Co.  v.  Martin 457 

Bettman  v.  Harness 463 

Bevis  v.  Markland 286 

Bicknell  v.  Austin  Co 369,  373 

Big  Hatchet  Co.  v.  Colvin 209 

Biglow  v.  Conradt 264 

Billings  v.  Aspen  Co 388,  389 

Bingham  Co.  v.  Ute  Co.  42,  56,  110 

Bird  v.  Utica  M.  Co 458 

Bishop  v.  Baisley 113,  123 

Bismarck  Co.  v.  Sunbeam  Co. 

38,  93,  443,  478 

Bissell  v.  Foss 418 

Bjorklund  v.  Gray 456 

Black  v.  Elkhorn  Co 176,  341 

v.  Giarth 329 

Blackburn  v.  Portland  Co.  .610,  613 

Blackmarr  v.  Williamson 370 

Blackmer  v.  Summit  Co 408 

Blackmore  v.  Reilly 307 

Blair  v.  Spokane 453,  457 

Blake  v.  Butte  Co 191 

v.  Thome 96,  158 

Blanek  v.  Pioneer  Co 429 

Blen  v.  Bear  River  Co 346 

Bliss  v.  Anaconda  Co 466 

v.  Kingdom 316 

Block  v.  Murray 331 

Blodget  v.  Columbia  Co 684 

Bluebird  Co.  v.  Largey.  .  .201,  229 

v.  Murray 222,  474 


TAP.LE  OF  CA«::o  CITED. 


71. 


PAGE 

Boehme  v.  Fitzgerald 368 

Bogart  v.  Amanda  Co 338 

Boggs  v.  Merced  Co 177,  180 

Boileau  v.  Heath 251 

Bonanza  Co.  v.  Golden  Head  Co.  93 

Bonner  v.  Meikle 609 

v.  Eio  Grande  Co 244 

Bonson  v.  Jones 300 

Book  v.  Justice  Co 

31,  59,  61,  63,  126, 

138,  187,  192,  199,  201,  229,  612 
Borgwardt  v.  McKittriek  Oil 

Co 119,  688 

Boston  Co.  v.  Montana  Co. ... 

226,  337,  465,  469 

Bowling  Co.  v.  Euffner 290 

Bradbury  v.  Davis 384 

Bradford  v.  Morrison. .  .9,  10,  324 

Bradford  Oil  Co.  v.  Blair 683 

Bradley  v.  Harkness 239 

v.  Heyward 354 

v.  People 435 

Brady  v.  Husby 37,  442 

Bramlett  v.  Flick 92,  104,  437 

Branagan  v.  Dulaney 187 

Brash  v.  White 159 

Breed  v.  Bank 408 

Brewster  v.  Shoemaker 

30,  49,  225,  316 

Brockbank  v.  Albion  Co 151 

Brooks  v.  Cook 366 

v.  Gaffin 365 

Brookshire  Oil  Co.  v.  Casmalia  465 

Brown  v.  Caldwell 432 

v.  Equitable  G.  Co 686 

v.  49  Co 309 

v.  Gordon  Tiger  Co 348 

v.  Gurney 118,  133 

v.  Levan 58,     92 

v.  Oregon  Co 

106,  135,  153,  151,  165 

v.  Wilson 679 

Brownfield  v.  Bier 281 

Browning  v.  Boswell 358 


PAGE 

Brundy  v.  Mayfield 147,  605 

Bryan  v.  McCaig 45,  620 

Buchner  v.  Malloy 9 

Buck  v.  Jones 394 

Buckeye  Co.  v.  Carlson 336,  381 

Buckley   v.   Fox 390 

v.  Port  Henry  Co 453 

Buena   Vista  Co.  v.   Honolulu 

Co 306 

Buffalo  Co.,  In  re 666 

v.  Crump 107 

v.  Jones 682 

Bullion  Co.  v.  Croesus  Co.197,  229 

v.  Eureka  Co. .  .196,  469,  480 

Bullis  v.  Noyes 373 

v.  Presidio  M.  Co 373 

Bullock  v.  Lewis 356 

Bunker  Hill  Co.  v.  Empire  St. 

Co... 51,  165,  202,  218,  219,  627 

v.  U.  S 665 

Burdick  v.  Dillon 413 

Burke  v.  McDonald 

16,  25,  29,  198,  437,  612,  622 

v.  So.  Pac.  Ey.  Co 

151,  180,  667 

Burkhard  v.  Mitchell 373 

Burnham  v.  Freeman 239 

Burton  v.  Forest  Oil  Co 684 

Busby  v.  Century  Co 428 

Bush  v.  Pioneer  Co 461 

v.  Sullivan 375 

Buskirk  v.  King 464 

Butler  v.  Eockwell 355 

Butte  Co.  v.  Barker 

48,  164,  165,  167,  612 

v.  Frank 10,  324 

v.   Morriman 281 

v.  Montana  Co 

245,  291,  418,  470 

v.  Eadmilovich 

33,  37,  60,  85 

v.  Sloan 281,  282,  284 

v.  Societe 199,  222 

v.  Vaughn 236 


716 


TABLE  OF  CASKS  CITED. 


PAGE 
Butte  Co.,  In  re  .............  590 

Butterfield  v.  Nogales  Co  .....   467 

Byard  v.  Holmes  ............   355 

Byrne  v.  Crafts  .............   241 

Byrnes  v.  Douglass  ..........   248 


c 


PACE 

Cassidy  v.  Silver  King  Co 148 

Cates  v.  Producers  Co 180 

Catron  v.  Laughlin 392 

—  v.  Old 211 

Catterlin  v.  Voney 451 

Caviness  v.  La  Grande  Co.  ...  234 

Cecil  v.  Clark 417 


Cache  Cr'k  Co.  v.  Brahenberg  113  Central  Co.  v.  E.  Central  Co. .   209 

C'ahoon  v.  Bayard 380 v.  Penny 448,  478 

Caldwcll  v.  Fulton 300      v.  Southern  Ref.  Co 686 

Caledonian  Co.  v.  Rocky  Cliff  v.  Williams 452 

Co 450      Chadbourne  v.  Davis 112 

Caley  v.  Portland. 365,  429      Chamberlain  v.  Collinson 451 

Calhoun  Co.  v.  Ajax  Co Chambers  v.  Brown 451 

176,177,187,317 v.  Chester 455 

Callahan  v.  James 308      v.    Harrington 

Calor  O.  &  G.  Co.  v.  Franzell  670          32,  123,  124,  623 

Calumet  Co.  v.  Phillips 411 v.  Jones 177 

Cambers  V.  Lowry 701  Champion     Co.     v.     Champion 

Cameron  v.  Burnham 379          Mines     345,  348 

'V.    Seaman 567 v.  Con.  Wyoming  Co.  189,  609 

v.  Weedin 254      Chandler  v.   Hart 358,  371 

Campbell  v.  Ellet 50,  312,  315      Chapman  v.  Toy  Long 140 

v.  Golden  Cycle  Co 223      Chappius  v.  Blankman 329 

v.  Rankin 104      Charlton   v.   Kelly 263 

v.  Rock  Oil  Co 682  Charter   Oak   Co.   v.   Stephens 

v.  Silver  Bow  Co 251       '. . . .  324,  481 

Capner  v.  Flemington  Co 460      Chatham  Co.  v.  Moffatt 356 

Cardelli  v.  Comstock  Co. .  .241,  461      Cheesman  v.  Hale 288 

Cardoner  v.  Stanley  Co 16,     95      v.  Hart 184,  214,  443 

Carlin  v.  Freeman 96,  162      v.  Shreve 38,  45, 

Carney  v.  Arizona  Co 141  151,  164,  200,  202,  222,  443,  447 

Carr,  In  re 474      Chenoweth  v.  Butterfield 344 

Carson  v.  Hayes 289  Cherokee  Co.  v.  Britton ......   453 

Carson  City  Co.  v.  North  Star  Cherry  Val.  Co.  v.  Florence  Co.  427 

Co 66,  Chicago  Co.  v.  Fidelity  Co. . .   457 

177,  178,  198,  209,  211,  214,  229      Chicago  Ry.  v.  Ferrell 465 

Carter  v.  Bacigalupi 97      Childers  v.  Lahan 443 

v.  Bell 484      v.  Neely 325 

v.  Cairo  Co 452      Chisholm  v.  Eagle  Co 427,  483 

Cascaden  v.  Bortolis 31,  264      Christy  v.  Campbell 356 

v.  Dunbar 370,378,  379  Cholokovitch  v.  Porcupine  Co.  382 

v.  Wimbish 330      Chung  Kee  v.  Davidson 324 

Casey  v.  Thieviege 282      Churchill  v.   More 684 


TABLE  OF  CASES  CIT^D. 


717 


PAGE 

Cisna  v.  Mallory 379 

Clark  v.  American  Co 348 

v.  Barnard 478 

v.  Buffalo  Hump  Co 411 

v.   Erwin 260 

v.  Fitzgerald 211 

v.  Mitchell... 51,  94,  157, 

159,  378 

v.  Nash 248 

v.  Wall 375 

Clark  Co.  v.  Ferguson 283 

Clark    Montana    Co.   v.    Butte 

Co 11,. 85,  98,  175, 

187,  204,  215,  337,  457,  464,  477 

Clarno  v.  Grayson 352 

Clary  v.  Hazlitt 179,  280 

Clason  v.  Matko 152 

Clavering  v.  Clavering 460 

Clear  Water  Co.  v.  San  Garde  94 

Cleary  v.  Skiffich 

252,  296,  478,  479  608 

Cleopatra  v.  Dickinson. .  .382,  451 
Cleveland  Cliffs  Co.  v.  East 

Itasca  Co 380 

Clifton  Co.  v.  Dye 288 

Clipper  Co.  v.  Eli  Co 286 

Cloninger  v.  Finlaison 59,  637 

Coal  Creek  Co.  v.  Moses 447 

Coalinga  Co.  v.  Associated  Co.  372 

Cochrane  v.  Justice  Co 373 

Coffee  v.  Emigh 188,  386 

Cole  v.  Cady 471 

v.  Elwood  Co 249 

Cole  Co.  v.  Virginia  Co 472 

Coleman  v.  Curtis 127,  138 

v.  Davis 621 

Colgan  v.  Forest  Oil  Co 672 

Collier  v.  Monger 381 

Collins  v.  Bailey 222 

v.  McKay 339 

v.  Mt.  Pleasant  Co 682 

v.  Smith 374 

Column  v.  Clements 4,  113 


PAGE 
Colorado  Co.  v.  Stearns  Roger 

Co 331 

Colorado  Cent.  AI.  Co.  v.  Turck 

212,  213 

Colo.  Coal  Co.  v.  U.  S 180,  253 

Colo.  F.  Co.  v.  Pryor 365,  451 

Colo  I.  Wks.  v.  Taylor 330 

Colo.  Midland  Ey.  Co.  v. 

O'Brien  457 

Columbia  Co.  v.  Duchess  Co.. 

29,  38,  53,  67 

Columbus  Co.  v.  Tucker 288 

Com.  v.  Trent 670 

Cone  v.  Roxana  Co 317 

Conkling  Co.  v.  Silver  King 

Co 63,  219 

Conn  v.  Oberto Ill 

Connolly  v.  Bouck 325,  368 

v.  Hughes 440,  625 

Conrad  v.  Saginaw  Co 369 

Cons.  Channel  Co.  v.  C.  P.  R. 

Co 248 

Cons.  Coal  Co.  v.  Baker 322 

v.  Peers 374 

Cons.  Gregory  Co.  v.  Raber. .  408 
Cons.  K.  C.  Co.  v.  Gonzales. . .  432 
Cons.  Rep.  Co.  v.  Lebanon  Co. 

14,  22 

Cons.  Wyoming  Co.  v.  Cham- 
pion Co 189,  198,  210,  222 

Consumers  Co.  v.  American  Co.  461 

Contreras  v.  Merck 113 

Conway  v.  Hart 27,  151 

Cook  v.  Klonos..40,  153,  267,  439 

Cooper  v.  Roberts 305 

Co-operative  Co.  v.  Law..  110,  159 
Coosaw  Co.  v.  Carolina  Co...  470 

v.  Farmers  Co 471 

Copper  Globe  Co.  v.  Allmann 

45,67,  94,100,  104,  440 

Copper  Mt.  Co.  v.  Butte  Co. 

124,  125 

Copper  Queen  Co.  v.  Stratton 

152,  1G3 


718 


TABLE  OP  CASES  CITED. 


PAGE 

Corbin  Co.  v.  Mull 684 

Corder  v.  O  'Neill 347 

Core  v.  New  York 371 

Corning  T.  Co.  v.  Pell 311 

Cortelyou  v.  Barnsdall 343 

Cosmopolitan  Co.  v.  Foote.  ...  215 
Cosmos  Co.  v.  Gray  Eagle  Co. 

254,  420,  441 

Costello  v.  Cunningham 417 

v.  Muheim 442 

v.  Scott 378 

Courchaine  v.  Bullion  Co 105 

Cox   v.   Clough 478 

v.  National  Co 409,  410 

v.  Prentice 483 

Cragie  v.  Eoberts 254 

Craig  v.  Thompson 

58,  99,  113,  164 

Crane  v.   Salmon 384 

Crane's  Gulch  Co.  v.  Scherrer  280 

Crary  v.  Dye 125,  442 

Crawford  v.  Bellevue  Co 373 

Credo  Co.  v.  Highland  Co 92 

Creede  Co.  v.  Uinta  Co 

315,  318,  319 

Crescent  Co.  v.  Silver  King  Co.  464 

Crocker  v.  Barteau 429 

Croesus  Co.  v.  Colorado  Co...  61 

Cronin  v.  Bear  Creek  Co.  .613,  617 

Crowe  Co.  v.  Atkinson 301 

Crowley  v.  Genesee  Co 408 

Crown  Point  Co.  v.  Buck.. 51,  209 

v.  Crismon 52,  128,  137 

Culbertson  y.  Tola  Co. ...  .475,  674 

Cullacott  v.  Cash  Co 61 

Cunningham  v.  Pettigrew. . . .  356 

v.  Pirrung 152 

Currie   v.   Jones 465 

Cushman  v.  Cloverland  C.  Co. 
407,  458 


Daggett  v.  Yreka  Co 209,  223 

Dahl  v.  Eaunkeim...283,  284,  285 


PAGE 

Dahlman  v.  Thomas 331 

Dailey  v.  Fitzgerald 368 

Dalliba  v.  Riggs 412 

Daniels  v.  Portland  M.  Co 434 

Darger  v.  La  Sieur 92 

Dark  v.  Johnston 376 

Davidson  v.  Fraser 606 

v.  Hughes 683 

Davis  v.  Brown  C  'y  Co 382 

v.  Dennis 441 

v.  Graham 458 

.  v.  Eiddle 682 

v.  Shepherd 51,  479 

v.  Weibbold 179,  307 

Day  v.  Kansas  City  P.  L 672 

v.  Louisville  C.  Co 290 

Dayton  Co.  v.  Sea  well 248 

Dean  v.  Omaha  Co 390,  688 

Debris  Cases 292 

Deeney  v.  Mineral  Cr.  Co.  .34, 

50,  120,  151,  165,  616,  618,  624 

Deffeback  v.  Hawke 179,  307 

Degnan  v.  Nowlin 382 

De  Graffenreid  v.  Savage 375 

Delaware  Co.  v.  Sanderson...  358 

Delmoe  v.  Long 147,  157 

Del  Monte  Co.  v.  Last  Chance 

Co 51,  66,  184,  210 

v.  New  York  Co 214 

De  Noon  v.  Morrison 123 

Depuy  v.  Williams 109 

Derry  v.  Eoss 109 

Detlor  v.  Holland 666 

Dettering  v.  Nordstrom 417 

DeWolf skill  v.  Smith 

112,  241,  356,  687 

Diamond  Co.  v.  Cuthbertson . .  445 

v.  Knote 684 

v.  U.  S 657 

Dibble  v,  Castle  Chief  Co 137 

Dickens  Co.  v.  Crescent  Co...    138 

Dill  v.  Fraze 680,  682 

Dillard  v.  Ollalla  M.  Co 34S 

Dillon  v.  Bayliss 96 


TABLE  OF  CASES  CITED. 


•719 


PAGE  PAGE 

Doctor  Co.  v.  Marsh 460      Dunham  v.  Selberling 460 

Doctor- Jack  Pot  Case 215      Dunlap  v.  Montana  Co 409 

Doddridge  Co.  v.  Smith v.  Pattison 63 

412,  674,  681      Duntley  v.  Anderson 680 

Dodge  v.  Marden 240      DuPont  v.  Tilden 394,  410 

Doe  v.  Sanger 208,  209,  214      Du  Prat  v.  James 99,  123,  135 

v.  Tyley 97      Durant  Case 227 

v>  Waterloo  Co Durant  v.  Comegys 345 

...34,  51,  53,  65,  167,  192,  v.  Corbin 265 

201,  213,  222,  336,  390,  612,  622      Durant  Co.  v.  Percy  Co 447 

v   Wood..,                      ..  375      Durgan  v.   Bedding 608,  612 

Doherty  v.  Morris! !  '.109,'  'l21,  156      Dui7ea  v'  Boucher 59 

Dolan  v.  Passmore 93           -  v.  Burt - 325 

Dolese  Co.  v.  Kahl 452      *£**£££, ™ 

Dyke  v.  Caldwell 236 

Donahue  v.   Johnson 470,471      y    Nat    Tr    QQ  44? 

Donnelly  v.  Booth  Co 453      y'          ^  _  ^                     ' '   ^ 

Donovan  v.  Hanauer 344 

Dooley  v.  Burlington  Co 357  E 

Dorr  v.  Hammond 112      Eadie  v.  Chambers 637 

Doster  v.  Friedensville  Co. ...  251      Eaman  v.  Bashford 330 

Dougherty  v.  Chesnutt 447      Earhart  v.  Powers 322 

v.  Creary 370      Early  v.  Friend 416 

Dower  v.  Eichards 307,  316  East  Central  Co.  v.  Central  Co.  209 

Downman  v.  Texas 323  Eastern  Co.  v.  Willow  Eiver  Co.  255 

Doyle   v.   Burns 378  Eastern  Oil  Co.  v.  Coulehan. .. 

Drake  v.  Lady  Ensley  Co 288          671,   682,  686 

Dreeland  v.  Pascoe 356      Eastwood  v.  Standard  Co 331 

Dresser  v.  Transportation  Co.  684      Eaton  v.  Norris 106 

Driscoll  v.  Dunwoody 459      Eberle  v.   Carmichael 126 

Drummond  v.  Long 58      Eberville  v.  Leadville  Co 478 

Ducie  v.   Ford 628  Ebner  Co.  v.  Alaska  Co.. 476,  634 

Duff  v.   Keaton 686      Eckley  v.  Daniel 354 

v.  U.  S.  Gypsum  Co.  232,  481      Eclipse  Co.  v.  Spring 191 

Duffield  v.  Eozensweig 449      Edelman  v.  Latshaw 381 

v.  San  Francisco  Co Edsall  v.  Merrill 417 

.;x-j .'. 254,   259,  436      Edwards  v.  Allouez  M.  Co 289 

Dugdale  v.  Robertson 474      Ege  v.  Kille 446,  447 

Duggan  v.  Davey. .  .206,  213,  222      Eilers  v.  Boatman 99 

Duncan  v.  American  Co 245      Eisleben  v.  Brooke 451 

v.  Eagle  Eock  Co Elder  v.  Horseshoe  Co 144,  147 

.48,  62,  113,  320,  389,  566,  620      v.  Wood \\^1 

. v.  Fulton 162,  163  El  Dora  Oil  Co.  v.  U.  S.. .   445,  462 

Dundas  v.  Muhlenberg 449  Electro-Magnetic    Co.    v.    Van 

Dunham  v.  Kirkpatrick 667          Auken    47 


720 


TABLE  OF  CASES  CITED. 


PAGE 

Ellet  v.  Campbell 49,  312,  315 

El  Paso  Co.  v.  McKnight.  .40,  578 

Emerson   v.   Akin 36,     40 

v.  Kennedy  M.  Co 307 

v.  McWhirter 4,  136 

Emma   Mine  Case 460 

Empire  Co.  v.  Bonanza  Co 446 

v.  Bunker  Hill  Co 

174,  176,  177,  184,  196,  223,  627 

v.  Tombstone  Co 219 

English  v.  Johnson 21,  105 

Ennor  v.  Barwell 474 

Enterprise  Co.  v.  Kieo-Aspen 

Co 311,  312,  316,  318,  319 

Equator  Co.  v.  Guanella 373 

v.  Marshall  Co 249 

Erhardt  v.  Boaro.25,  27,  38,  52, 

104,  136,  312,  439,  445,  463,  469 

Erie  Oil  Co.  v.  Meeks 679 

Ernest  v.  MeCauley 357 

v.  Vivian 463 

Erwin  v.  Perego 30,  162 

Erwin  'a    Appeal 251,  290 

Esselstyn  v.  U.  S.  Corp 

189,  444,  476 

Eureka  Co.  v.  Bass 456 

v.  Richmond  Co 

174,  197,  199,  208 

v.  Tom  Moore  Co 35 

Evaliha  Co.  v.  Tosemite  Co.. 

125,  149 


Fair  Play  Co.  v.  Weston 241 

Farmington  v.  Ehymney  Co . .     92 

Farrell  v.  Lockhart 133,  135 

Faxon  v.  Barnard 99,  103,  439 

Fayter  v.   North 239 

Fee   v.   Durham 154 

Felton  v.  West  Co 409 

Ferris   v.   Coover 108 

v.  MeNally 100,  104,  440 

Fidelity  Co.  v.  Bank 357 

Field  v.  Beaumont. . .  , 460 


PACK 

Field  v.  Grey 430 

v.  Tanner 12,  128,  1 53 

Findlay  v.  Smith 298 

Finerty  v.  Fritz 343,  408 

Firestone  Co.  v.  McKissick...  395 

First  Nat.  M.  Co.  v.  Altvater  136 

Fisk  M.  Co.  v.  Reed 233 

Fissure  Co.  v.  Old  Susan  Co. 

93,  95,  126,  318 

Fitzgerald  v.  Clark 199 

Fitzpatrick  v.  Montgomery...  287 

Flagstaff  Co.  v.  Tarbet 

193,  210,  218,  226 

Flavin  v.  Mattingly 95 

Fleming  v.  Daly 46 

Flick  v.  Hahn's  Peak  Co 243 

Florence  Co.  v.  Orman 668 

Florence  Rae  Co.  v.  Kimbel.. 

110,  121 

Flynn  Co.  v.  Murphy.  .  .16,  40,  93 

Foley  v.  Pioneer  Co 458 

Foote  v.  National  Co 45 

Forbes  v.  Gracey 7,  322 

Ford  v.  Campbell 86 

Forderer  v.  Schmidt 148 

Forty  Fort  Co.  v.  Kirkendall  323 

Foster  v.  Hart  M.  Co 3,  322 

v.  Lumbermen's  Co 251 

v.  Weaver 447 

420  Mining  Co.  v.  Bullion  Co. 

477,  479 

Fowler  v.  Delaplain 681 

Fox  v.  Hale  Co 427,  483 

v.  Mackay 428 

v.Myers 26,  31 

Frank  Co.  v.  Belleview  Co 683 

Franklin  v.  Havalina  Co 369 

Fredonia  Co.  v.  Bailey.  .  .382,  684 

Fredricks  v.   Klauser 

121,  122,  123,  124 

Freezer  v.  Sweeney 279 

Fremont  v.  Seals 392 

v.  U.  S 392 

French  v.  Lancaster 418 


TABLE  OF  CASES  CITED. 


721 


PAGE 

Friel  v.  Kimberly  Co 454 

Frisholm  v.  Fitzgerald- 165 

Fuhr  v.  Dean 375 

Fuller  v.  Harris 4,  159 

v.  Swan  River  Co 

236,   288,  466 

Fulmer's  Appeal 416 

Fulton  v.  Wilmington  Co 457 

G 

Gagnon  v.  French  Lick  Co ....   670 

Gaines  v.  Chew 346,  347 

Galbraith  v.  Shasta  Co 

61,   179,  341 

Galbreath  v.  Simas 388 

Gale  v.  Best ." 25.2,  304 

Galloway  v.  Blue  Spgs.  Co...  324 

Gamble  v.  Hanchett 346 

Gamer  v.  Glenn 91,     96 

Garein  v.  Penn  Co 348 

Garfield  Co.  v.  Hammer 99 

Garibaldi  v.  Grillo 264 

Garrard  v.  S.  P.  Mines 178 

Garthe  v.   Hart 149 

Garvey  v.  Elder 128 

v.  La  Shells 348 

Gaylord  v.  Place 279 

Gayton  v.  Day 683 

Gear  v.  Ford 122,  137 

Gelcich  v.  Moriarty 50 

Gelwicks  v.  Todd 239 

Gemmel  v.  Swain 28,     35 

Genett  v.  Delaware  Co 251 

Genter  v.  Conglomerate  Co...  408 
Georgia  v.  Tennessee  Cop.  Co.  293 

Ghost  v.  Shuman 450 

v.  U.  S 657 

Giberson  v.  Tuolumne  Co.. 93,  165 

Gibson  v.  Anderson 418 

v.  Chouteau 164 

Giffin  v.  Pipe  Lines 432 

Gildersleeve  v.  New  Mex.  Co. .  392 
Gillespie  v.  American  Zinc  Co.  674 
Gillis  v.  Downey 117 


PAGE 

Gilpin  v.  Sierra  Nevada  Co..  206 

Gilpin  M.  Co.  v.  Drake.  .50,  58,  451 

Ginocchio  v.  Amador  Co 239 

Girard  v.  Carson 40,  41 

Gird  v.  California  Co 

36,  87,  95,  123,  265,  686 

Girton  v.  Daniels 366 

Glacier  M.  Co.  v.  Willis.. 336,  477 

Glade  v.  Eastern  HI.  Co 348 

Glasgow  v.  Chartiers  Co 

112,  367,  681 

Glass  v.  Basin  Co 59 

Gleeson  v.  Martin  White  Co. . 

21,  50,  99,  195 

Globe  Co.  v.  Tennessee  Co 428 

Glover  v.  Manila  Co 411 

Gobert  v.  Butterfield. .  .16,  63,  166 

Goddard  v.  Winchell 257 

Godfrey  v.  Faust 121 

Gohres  v.  Illinois  Co...  16,  50,  267 

Goldberg  v.  Bruschi 136 

Golden  v.  Murphy 

....150,  201,  208,  223,  476,  481 

Golden  Co.  v.  National  Co 616 

Golden  Cycle  Co.  v.  Christmas 

Co 444 

Golden  Fleece  Co.  v.  Cable  Co. 

3,  193,  437 

R.  Co.  v.  Buxton  Co 448 

Terra  Co.  v.  Mahler. .  .29,  39 

Goldfield  Co.  v.  Old  Co... 248,  290 

v.  Richardson 434 

Gold  Hill  Co.  v.  Ish 304 

Gold    Hunter   Co.    v.    Johnson 

453,  458 

Gold  Ridge  Co.  v.  Tallmadge. .   243 

Gonu  v.  Russell ..22,  50,  131 

Goodwin  v.  Colorado  Co 414 

Gordon  v.  Darnell 343 

v.  Park 479 

Gordon  Tiger  Co.  v.  Brown. ..   355 

Gore  v.  McBrayer 4,  24,     64 

Gorman  Co.  v.  Alexander 388 

Gouverneur  Co.,  In  re 409 


722 


TABLE  OF  CASES  CITED. 


PAGE 

Graham,  In  re 596 

Grand  Cent.  Co.  v.  Mammoth 

Co......  177,  181,  199,  201,  222 

Grants  Pass  Co.  v.  Enterprise 

Co 450,  685 

Gray  v.  Truby 47 

Gray  Copper  Lode 166 

Gray  Lumber  Co.  v.  Gaskin . . .  464 
Great  Gas  Co.  v.  Logan  Co. . .  685 
Great  Southern  Co.  v.  Logan 

Co 450,  685 

Great  West  Co.  v.  Woodmas  Co.  346 
Great  Western  Co.  v.  Cham- 
bers  356,  411 

v.Hawkins 249 

Green  v.  Gavin 37,  94,  270 

Greenlee  v.  Steelsmith 325 

Greer  v.  Heiser 235 

Gregoric  v.  Percy  La  Salle  Co.  456 
Gregory  v.  Pershbaker 

100,  259,  440 

Grey  v.  Northumberland 462 

Gribben  v.  Atkinson 372 

Griffin  v.  Fairmount  C.  Co. ...  302 

Gruwell  v.  Rocco 390 

Guffey  v.  Smith 685 

Guffey  Petroleum  Co.  v.  Mur- 

rel  256 

—  v.  Townsite  Co 673 

Guild  Co.  v.  Mason 428 

Gumaer  v.  Cripple  Creek  Co..  409 

Gurney  v.  Brown 597 

Gwillim  v.  Donnellan 

41,  42,  166,  321 

G.B.V.Co.v.  Bank..  325,  395,  407 

H 

Habeler  v.  Rogers 428 

Hadley  Co.  v.  Cummings 331 

Hahn  v.  James 85 

Hain  v.  Mattes 320,  438 

Hall  v.  Abraham 375,  447 

— —  v.  Arnott 165 

v.  Duke  -of  Norfolk 480 


PAGE 

Hall  v.  Hale 119 

v.  Kearny 124,  135 

v.  MeKinnon 265 

v.  Nash 347 

Halla  v.  Cowden 341 

—  v.   Rogers 140,  471 

Hallack  v.  Traber 159 

Hamburg    Co.    v.    Stephenson 

296,  298 

Hamby    v.    City    of    Dawson 

Springs     310 

Hamilton   v.   Ely 461 

v.  Nevada  Co 480 

Hammer  v.  Garfield  Co.  91, 113,  390 

Hammon  v.  Nix 323 

Hancock  v.  Keene 457 

Hand  v.  Cook 65 

Handy  Ditch  Co.  v.  Louden  Co.  236 

Hannan  v.   Seidentopf 334 

Hansen  v.  Craig 105,  264 

v.  Fletcher 16,  60,     92 

Hardenbergh  v.  Bacon 408 

Hardin  Lode  Case.  (See  Pollard 

v.  Shively.) 

Harkness  v.  Burton Ill 

Harlan  v.   Harlan 432 

Harley  v.  Montana  Co 464 

Harper  v.  Hill 20,  31,  113 

Harrington  v.  Chambers 

32,  33,  199,  623 

—  v.  Union  Co 412 

Harris  v.  Balfour  Co 456 

v.  Equator  Co 

9,  440,  443,  478 

v.  Helena  Co 610 

v.  Kellogg 137,  138,  390 

v.  Ohio  Oil  Co 674 

Hartford  Co.  v.  Cambria  Co..   449 

Hartman  v.  Smith 296,  297 

Harvey  v.  Ryan 5 

v.  Sides  Co 250 

Haskell  v.  Cowham 248 

v.  Sutton 667 

Hathorn  v.  Natural  Co C,:\7 


TABLE  OF  CASES  CITED. 


723 


PAGE 

Hauswirth  v.  Butcher 16,     50 

Hawgood  v.  Emery 126 

Hawkins  v.  Spokane  Co 416 

Hawley  v.  Diller 661 

Haws  v.  Victoria  Co.. 86,  104,  437 

Hawtayne  v.  Bourne 408 

Hawxhurst  v.  Lander 104 

Hayden  v.  Brown 93 

Hayes  v.  Lavagnino . .  29,  201,  203 

Haynes.  v.  Briseoe 144 

Hays  v.  Forest  Oil  Co 681 

Head  v.  Hale 236,  241 

Headley  v.  Hoopengarner. . . .   681 

Healey  v.  Rnpp 30,  31,  53,  484 

Heaney  v.  Butte  Co 465 

Hecla  Co.  v.  O'Neill 409 

Hector  Co.  v.  Valley  View  Co.  113 

Hedlun  v.  Holy  Terror  Co 455 

Heinze  v.  Boston  Co 222 

v.  Butte  Co 441 

Helbert  v.  Tatem 617 

Helena  Co.  v.  Baggaley 93,  102 

v.  Spratt 242,  248 

Helstrom  v.  Eodes 182 

Hendricks  v.  Morgen 66 

Hendrickson  v.  U.  S.  Gypsum 

Co 455 

Hendrie  &  B.  Co.  v.  Parry.  .411,  412 

Henry  Gas  Co.  v.  U.  S 670 

Hermocilla  v.  Hubbell 305 

Herriman  Co.  v.  Butterfield  Co.  478 

Hersey  v.  Tulley 409 

Hess  v.  Winder. .  .14,  21,  440,  462 

Hesser  v.  Chicago  Co 428 

Hext  v.  Gill 256 

Hexter  v.  Pearce 354 

Heydenfeldt  v.  Daney  Co.  175,  305 

Heyward  v.  Bradley 354 

Hickey  v.  Anaconda  Co 

'-"..... 25,  97,  119,  173 

v.  U.  S 442 

Hicks  v.  American  Co 464 

v.  Bell 7 

Hipgins  v.  California  Co 411 


PAGE 

Highfield  Co.  v.  Kirk 673,  674 

Highland  Boy  Co.  v.  Pouch .  . .   458 

v.  Strickley 244,  248 

Hill  v.  King 288 

v.  Standard  M.  Co 289 

Himrod  v.  Ft.  Pitt  Co 251 

Hinchman  v.  Cons.  Arizona  Co.  429 

Hindson  v.  Markle 288 

Hines  v.  Miller 330 

Hirschler  v.  McKendricks. .  123,  132 

Hitchman  Co.  v.  Mitchell 361 

Hjelm  v.  Western  Gr.  Co 455 

Hoban  v.  Boyer 51 

Hobart  v.  Ford 244 

Hobbs  v.  Davis 354,  475 

v.  Tom  Eeed  Co 394 

Hoffman  v.  Beecher 603 

Holbrooke  v.  Harrington 143 

Holdt  v.  Hazard....  105,  388,  441 
Honaker  v.  Martin..  122,  131,  153 

Honolulu  Co.,  In  re 424 

Hood  v.  Hampton  Co 408 

Hoogendom  v.  Daniel 353 

Hoosac  Co.  v.  Donat 369,  449 

Homer  v.  Watson 300 

Horsky  v.  Helena  Co 472 

v.  Moran 307 

Horswell  v.  Ruiz 99,  208 

Hosford  v.  Metcalf 109,  375 

Hosmer  v.  Wyoming  Co 346 

Howard  v.  Luce 367 

Howes  Co.  v.  Howes  Ass  'n . . .  474 

Howeth  v.   Sullenger 56,  166 

Hoy  v.  Altoona  Co 462 

Hugunin  v.  McCunniff 450 

Hukill    v.    Myers 371 

Hullinger  v.  Big  Sespe  Co...  688 

Hulst  v.  Doerstler 158 

Humbird  v.  Davis 355 

Humphreys  v.  Mooney 415 

Hunt  v.  Eureka  Gulch  Co 438 

v.  M  'Narnee 457 

v.  Patchin 1  r,  \ 

v.   Stecse...  ,.   2^3 


724 


TABLE  OF  CASES  CITED. 


PAGE 

Huteninson  v.  Kline 300 

Hyman  v.  Wheeler 201,  202 


Iba  v.  Cent.  Assn 619 

Idaho  Co.  v.  Winchell 331 

Illinois  Co.  v.  Raff 223,  445 

Indiana  v.  McCrory 671 

Indiana  Co.  v.  Gold  Hills  Co... 

42,  86 

Indiana  N.  G.  Co.  v.  Wilhelm  683 
Indianapolis  G.  Co.  v.  Pierce  680 

Ingemarson  v.  Coffey 35,  44 

Ingram  v.  Golden  Co 371 

Integral  Co.v.  Altoona  Co.  112,  445 
International  Tr.  Co.  v.  Decker 

325,  412 

Iron  Silver  Co.  v.  Campbell.. 

175,  207,  222,  223,  284,  285,  591 

v.  Cheesman 202,  225 

v.  Elgin  Co 

52,  66,  208,  226,  229,  230 

v.  Mike  and  Starr  Co.  . . 

201,  207,  282,  283 

Irwin  v.  Davidson 460,  4"61 

v.  Strait 240 

Isabella  M.  Co.  v.  Glenn 449 

Isom  v.  Bex  Co 358 

Ivanhoe  Co.  v.  Keystone  Co ...  305 


Jack  Harvard  Co.  v.  Continen- 
tal   Co 460 

Jack  Pot  Lode  Case 230 

Jackson  v.  Dines 390 

v.   McPall 615 

v.  Prior  Hill  Co 150 

v.   Eoby.,122,   140,   437,  625 

v.  Yak  M.  Co 454 

Jacob  v.  Day 245 

v.  Lorenz 235,  240 

James  v.  Emmet  Co 453 

Jamestown  Co.  v.  Egbert 380 

Jantzon  v.  Arizona  Co 390 


PAGE 
Jefferson  Co.  v.  Anchoria  Co.  .   215 

Jeffords  v.   Hine 182 

Jennings  v.  Beale 4(57 

v.  Dav;s 454 

v.  R'ckard 379 

Jer.nings    Oil    Synd.   v.    Hous- 

siere  Co 3-18 

Jennison  v.  Kirk 234,  235,  242 

Jewell  v.  Trilby  Mines 346 

Jim  Butler  Co.  v.  West  End 

Co 206,  209 

Job  v.  Potton 376,  417 

Jobe  v.  Spokane  Co 45G 

Johanson  v.  White 264 

Johnson  v.  Buell 193 

v.  Munday 612 

v.  Sage 407 

v.  Withers 357 

v.  Young.  .113,  140,  155,  620 

Johnstone   v.   Crompton 256 

v.  Robinson. 376 

Johnstown  Co.  v.  Butte  Co...   467 

v.  Cambria  Co 375 

Jones  v.  Forest  Oil  Co 669 

v.  Jackson 290 

v.  Pearl  M.  Co 394 

v.  Prospect  Co.. 46,  198,  212 

v.  Scott 371 

v.  Wild  Goose  Co 267 

Jordan  v.  Duke 105,  132,  441 

v.   Schuerman 165 

Joseph  v.  Davenport 369 

Jos.  Taylor  Co.  v.  Dawse 454 

Junction  Co.  v.  Springfield  Co.  365 
Jupiter  Co.  v.  Bodie  Co 

28,  30,  58,   123,  225 

Jurgenson   v.    Diller 331 

Justice  Co.  v.  Barclay 130 

v.  Lee 387 

K 

Kahn  v.  Old  Telegraph  M.  Co.  178 
Kannaugh  v.  Quartette  Co...  171 
Kansas  N.  G.  Co.  v.  Haskell. .  685 


TABLE  OF  CASES  CITED. 


725 


PAGE 

Kansas  N.  G.  Co.  v.  Harris..   Ill 
Keeler  v.  Green 375 

v.  Trueman 9 

Keely  v.  Ophir  Hill  Co... 222,  223 

Kelley  v.  McXamee 368 

Kelly  v.  Butte 232,  445 

v.  Fourth  Co 394 

v.  Keys 668 

Kendall  v.  San  Juan  Co.  .418,  419 

Kendrick  v.  Colyar 356,  442 

Keppler  v.  Becker 618 

Kern  Co.  v.  Crawford 270 

Kevern  v.  Prov.  Co 457 

Kift  v.  Mason 281 

Kileoyne  v.  Southern  Oil  Co..   681 

Ivimball  O.  Co.  v.  Keeton 682 

Kimberly  v.  Howland 455 

Kinard  v.  Jordan 429 

v.  "Ward 475 

King  v.  Amy  Silver  Smith  Co.  210 

v.  Edwards 131 

v.  Mullins 463 

v.  New  York  Co 301 

v.  Thomas 307,  478 

v.  Lamborn 355,  357 

King    Solomon    Co.    v.    Mary 

Verna  Co 40,  163,  445 

Kingston  v.  Lehigh  Valley  Co.  447 
Kinney  v.  Cons.  Va.  Co 2 

v.  Fleming 59,  112 

v.  Lundy 152 

Kinsel  v.  North  Butte  Co 453 

Kinsley  v.  New  V.  Co 122 

Kipp  v.  Davis  Daly  Co 248 

Kirk  v.  Meldrum 

105,265,  269,  271,  625 

Klein  v.  Davis 460,463 

Kleppner  v.  Lemon 673 

Kline  v.  Guaranty  O.  Co 669 

Klopenstine  v.  Hays 123,  130 

Knickerbocker  v.  Halla 

137,   144,  148 


PAGE 

Knippenberg  v.  Greenwood  M. 

Co 407 

Knox  v.  Higby 322 

Kolachny  v.  Galbreath 668 

Koons  v.  Bryson 440 

Kramer  v.   Settle 123,  136 

Kreps  v.  Brady 256 

Kuhn  v.  Fairmont  C.  Co 302 

Kuzek  v.  Magaha 373 


Lacey  v.  Woodward 128 

Lacustrine  Co.  v.  Lake  Guano 

Co 251 

Lacy  v.  Gunn 395 

Laesch  v.  Morton 245,  418 

La  Follette  Co.  v.  Minton 453 

Lagarde  v.  Anniston  Co 411 

La  Grande  Co.  v.  Shaw 336 

La  Harpe,  City  of,  v.  Elm  Co.   249 
Lakin  v.  Dolly 178 

v.  Eoberts 178 

v.  Sierra  Buttes  Co 128 

Lalande  v.  McDonald 99 

Lamb  v.  Goldfield  Co 330 

Lament  v.  Keynolds 367 

Lamprnan  v.  Milks 240 

Lancaster  v.  Coale 137,  148 

Lane  Co.  v.  Bauserman 456 

Lange  v.  Robinson 263,  441 

Largey  v.  Bartlett. . .  T 355 

Larkin  v.  Upton 196 

Lamed  v.  Jenkins 194,  307 

Last    Chance    Co.    v.    Bunker 

Hill    Co 236 

v.  Tyler  Co 

....170,  190,  210,  214,  218,  627 

Las  Vegas  Co.  v.  Summerfield 

164,  336 

Lauman  v.  Hoofer.    , 155 

Lavagnino  v.  Uhlig...65,  133,  478 

L.-IW  v.  Grant 697 

Lawrence  v.  Gaj  etty 357 


TABLE  OF  CASES  CITED. 


PAGE 

Lawrence  v.  Robinson 378 

Lawson  v.  Black  Diamond  Co.  348 

v.  U.  S.  M.  Co 196 

Leadville  v.  Bohn  M.  Co 309 

Leadville  Co.  v.  Fitzgerald... 

198,  202,  213,  222 

Lebanon  Co.  v.  Cons.  Republi- 

can  Co 339 

v.  Eogers 194,  479 

Le  Glair  v.  Hawley 419 

Ledoux  v.  Forester 16 

Lee  v.  Stahl 187,  189 

Le  Fevre  v.  Amonson..lOO,  182,  254 

Leggat  v.  Carroll 239 

Leggatt  v.  Stewart 16 

Lehigh  Co.  v.  Bamford 355 

v.  New  Jersey  Co 432 

v.  Trotter 427,  472,  483 

Lendberg  v.  Brotherton  Co...  457 

Lesamis  v.  Greenberg 429 

Leveridge  v.  Hennessey 93 

Lewey  v.  Frick  Co 480 

Lewis  v.  Garloek 421 

v.  Herrera 342 

v.  Mammoth  Co 454 

v.  Marsh 474 

v.  Virginia  Co 447 

Liberty  Bell  Co.  v.  Moorhead 

Co 446 

v.  Smuggler  Union  Co ... 

222,  445,  443 

Lichtenberger  v.  Newhouse...  418 

Light  v.  U.  S 420 

Lightner  Co.  v.  Lane. .  448, 450,  480 

Lime  Lode  Case 227 

Lincoln  v.  Rodgers 287,  291 

Lindemann  v.  Belden  Co 330 

Lindsley  v.  Natural  Co 667 

v.  Union  Co 467 

Little  Dorrit  Co.  v.  Arapahoe 

Co 125 

Little  Gunnell  Co.  v.   Kimber 
48,  123,  128,  131,  150 


PAGE 

Little  Josephine  Co.  v.  Fuller-  * 

ton    189 

Little   Pittsburg   Co.   v.   Amie 

Co 39,     42 

v.  Little  Chief  Co 447 

Little   Schuylkill  Co.  v.  Rich- 
ards    250 

Little  Sespe  Co.  v.  Bacigalupi  269 

Lloyd  v.  Catlin  Co 463 

Lockhart  v.  Johnson 

100,  104,  392,  440 

v.  Leeds 469 

v.  Rollins.  .122,  127,  149,  159 

v.  Washington  M.  Co ...  106 

v.  Wills 66,  103,  392 

Lockwood  v.  Lunsford. .  461,  463 

Locust  Co.  v.  Gorrell 232 

Lohman  v.  Helmer 389 

Londonderry  Co.  v.  United  Co. 

58,     96 

Loney  v.  Seott 260,  308,  421 

Lonsdale  v.  Curwen 474 

Lord  v.  Carbon  Co 232 

v.  Pueblo  Co 458 

Lorimer  v.  Lewis 169 

Loud  v.  Gold  Ray  Co 329 

Louden  v.  Cincinnati 455 

Louisville  G.  Co.  v.  Dulaney..   685 

v.  Kentucky  H.  Co 670 

Low  Moor  Co.  v.  La  Bianca.  .   454 

Lowry  v.  Silver  City  Co 

159,   162,  373 

Lowther    Co.    v.    Miller-Sibley 

Co 683 

Loy  v.  Alston 368 

Lozar  v.  Neill 150,  615,  626 

Luengene  v.  Consumers  Co...  455 
Lytle  v.  James 460 

M 

Mack  v.  Mack 378,  380 

Macon  v.  Trowbridge.324,  365,  451 

Madar  v.  Norman 367 

Madeira  v.  Sonoma  Co...  l(j 


TABLE  OF  CASES  CITED. 


727 


PAGE 

Madison  v.  Ducktown  S.  Co. . 
289,  293 

v.  Octave  Oil  Co 128,  253 

Maeris  v.  Bicknell 235,  240 

Magnet  Co.  v.  Page  Co 463 

Maher  v.  Shull 331 

Majestic  Co.  v.  McCoy 458 

Malaby  v.  Eice 605 

Malcomson  v.  Wappoo  Mills. .  310 

Malececk  v.  Tinsley 35 

Mallett  v.  Uncle  Sam  Co 

9,  108,  111 

Malone  v.  Big  Flat  Co 329 

Maloney  v.  King 

222,  450,  462,  464,  469 

v.  Love 370 

Mammoth  Co.'s  Appeal 460 

Mammoth  M.  Co.  v.  Gr.  Cent. 

M.  Co 199,  213 

v.  Thomas 453 

Manning  v.  Kansas  Co 418 

v.  Strehlow 612,  622 

Manross  v.  Uncle  Sam  Co 409 

Manson  v.  Dayton 250,  349 

Manuel  v.  Wulff 388 

Manufacturers  Co.  v.  Indiana 

Co 669 

Manville  v.  Parks.  .- 367 

Marburg  Lode  Case 627 

Mares  v.  Dillon 98 

Marks  v.   Gates 380 

Mars  v.  Oro  Fino  Co 623 

Marshall  v.  Harney  Peak  Co. . 

-*JJ 34,   104,  109 

Marshall  Co.  v.  Kirtley 438 

Martin  v.  Danziger 464 

v.  Walsenburg  Co 366 

Martinez  v.  Earnshaw 427 

Marvin  v.  Brewster  Co 300 

Maryland  Clay  Co.  v.  Simpers.   354 

Mascot  Co.  v.  Garrett 458 

Mason  v.  Sieglitz 346 

v.  Washington  Co 

26,  282,  284 


PAGE 

Massot  v.  Moses 225,  375 

Mather  v.  Rillston 455 

v.  Trinity  Church 432 

Mathews   Co.  v.   New   Empire 

Co 352,  371 

Mathews  Slate  Co.,  In  re 413 

Matko  v.  Daley 152 

Matlock  v.  Stone 615 

Mattingly  v.  Lewisohn 

127,  617,  620,  621 

Matulys  v.  Philadelphia  Co. . .  302 

Meagher  v.  Reed 367 

Meehan  v.  Nelson 381 

Mellors  v.  Shaw 454 

Merced  Co.  v.  Patterson 263 

Merchants  Bank  v.  McKeown. 

122,   124,  620 

Mercur  Co.  v.  Spry 322 

Merk  v.  Bowery  Co 345 

Merritt  v.  Judd 9 

Metcalf  v.  Prescott 95,     97 

Meyer  Co.  v.  Steinfield 63 

Meylette  v.  Brennan 378 

Michael  v.  Mills 42 

Mickle  v.  Douglass 302,  369 

Midland  Oil  Co.  v.  Turner 412 

Migeon  v.  Montana  Ry...282,  620 
Mike  &  Starr  Case.,  (See  Iron 

S.  Co.  v.  M.  &  S.  Co.) 

Miles  v.  Butte  Co 240 

v.  New  York  Co 302 

v.  Pa.  C.  Co 302 

Miller  v.  Butterfield 379 

v.  Chester  Co 371 

v.  Chrisman 

105,  151,  167,  267,  336 

v.  Girard 41 

v.  Hamley 597 

Mills  v.  Fletcher 120,  128 

v.  Hart 157 

v.  Hartz 372 

Milner  v.  U.  S 632,  657 

Milwaukee  v.    Tomkins   C'risty 

Co ..331 


TABLE  OF  CASES  CITED. 


PAGE 

Minah  Co.  v.  Briscoe 158 

Mineral  Farm  Co.  v.  Barrick. .   573 

Minnesota  Co.  v.  Brasier 480 

Miocene  D.  Co.  v.  Jacobsen. . . 

240,   243,  465 

v.  Lyng 249 

Miserv.  O'Shea 291 

Mitchell  v.  Big  Six  Co 469 

—  v.  Cline 265 

v.  Gray 343 

v.  Hutchinson 268 

Mitchell  M.  Co.  v.  Hammons. .   357 
Moffatt  v.  Blue  River  Co 

106,  151,  625 

Molina  v.  Luce 441 

Mollie  Gibson  Co.  v.  Thatcher.  339 
Monarch  Oil  Co.  v.  Richardson  682 

Monroe  v.  N.  Pac.  Co 451 

Montagne  v.  Labay 134 

Montana  Co.  v.  Boston  Co 

...176,  184,  222,  223,  338,  464 
v.  Clark 66,  208,  213,  465 

v.  Gehring 291 

v.  Livingston 322 

v.  St.  Louis  Co 

51,  338,  441,  448,  466,  474,  475 

—  Ry.  v.  Migeon 281 

Montgomery  v.  Gilbert 471 

Montrozona  Co/v.  Thatcher. . 

371,  448 

Moody  v.  McDonald 451 

Mooney  v.  York  Co 381,  452 

Moore  v.   Fe'rrell 461 

.  v.   Griffin 340 

—  v.  Hamerstag 63 

v.  Indian  Camp  Co 301 

v.  Ohio  Valley  Co 684 

v.  Robbins 181 

v.  Smaw 7,  303,  391 

Moorhead  v.  Erie  Co.. 98,  133,  135 

Moragne  v.  Doe 417,  447 

More  v.  Massini 463 

Morenhaut  v.  Wilson 620 

Morgan  v.  Myers 124,  623 


PAGE 

Morgan  v.  Tillotson 141,  153 

v.  U.  S 665 

Morgenson  v.  Middlesex  Co.  . .   187 

Moritz  v.  Lavelle 378 

Morris  v.  Bean 235 

—  v.  DeWitt 459 

Morrison  v.  New  Haven  Co.  . .   329 

v.  Regan 58,  64,  93,  165 

Morrow  v.  Matthew 380 

Morton  v.  Solambo  Co 64 

Mosher  v.  Sinnott 393 

Mound  City  Co.  v.  Goodspeed 

Co 323 

Mountain  Copper  Co.  v.  U.  S.  .  292 

v.  Van  Buren 453 

Mt.  Diablo  Co.  v.  Callison 

.113,  121,  123,  201 

Mt.  Rosa  Co.  v.  Palmer 286 

Mt.  View  Co.  v.  McFadden.  . .  610 
Mt.  Wilson  Co.  v.  Burbridge .  .  408 
Moyle  v.  Bullene..39,  41,  165,  306 

Moynahan  v.  Prentiss 452 

Mudsill  Co.  v.  Watrous.  .  .355,  483 

Muldoon  v.  Brown 96,  623 

Muldrick  v.  Brown 31,  4." 

Mullan  v.  U.  S 180 

Multnomah  Co.  v.  U.  S 26U 

Murley  v.  Ennis. 

25,  63,  112,  376,  378,  379 

Murphy  v.  Cobb 435 

Murray  v.  Allred 666 

v.  Haverty 417 

v.  Osborne 48 

v.  Polglase 118 

v.  White 252,  263 

Murray  Hill  Co.  v.  Havener. . 

138,  442 

Muskett  v.  Hill 376 

Musser  v.  Fitting 121 

Mutchmor  v.  McCarty 

41,  92,  283,  443 

Myers  v.  Hudson  Co 453,  454 

v.  Spooner 103 

McCahan  v.  Wharton 367 


TABLE  OF  CASES  CITED. 


PAGE 

McCann  v.  McMillan ..  94,  107,  109 
McCarthy  v.  Bunker  Hill  Co.  . 

289,   466,  470 

v.  Speed.... 96,  156,  285,  309 

McCleary  v.  Broaddus.  .37,  39,     67 
McCleery  v.  Highland  Boy  Co.  293 

McClung  v.  Paradise  Co 330 

McClurg  v.  Crawford 354 

McCombs  v.  Stephenson 256 

McConaghy  v.  Doyle 281 

McConnell  v.  Pierce 300 

McCord  v.  Oakland  Q.  Co.  143,  417 

McCormick  v.  Baldwin 131 

v.  Parriott 127,  476 

v.  Varnes 226 

McCowan  v.  Maclay 97,  478 

McCullagh  v.  Rains 375 

McDaniel  v.  Moore 143 

McDermot  Co.  v.  McDermot..   158 
McDonald  v.  McDonald. .  .153,  154 

v.  Montana  Co 265 

McDougall  v.  McConnell 339 

McElligott  v.  Krogh 

16,  20,  52,  184,  209 

MeEvoy  v.  Hyman 63,  164,  624 

McFadden  v.  Mt.  View  Co. 419,  612 

McFeters  v.  Pierson 9 

McGahey  v.  Oregon  King  Co. .   379 

McGarrity  v.  Byington 122 

McGinnis  v.  Egbert 29, 

42,    45,    52,    103,    111,    119, 
138,    139,    164,    437,    622,    623 

McGoon  v.  Ankeny 112 

McGowan  v.  Bailey 416 

McGuire  v.  Boyd  C.  Co 462 

v<  Wright 684 

Mclntosh  v.  Price 19,     96 

v.  Kobb 365 

Mclntyre  v.  Ajax  Co 428 

.      v.  Mclntyre  Co 364 

McKayv.McDougaU.110,  119,  131 

v.  Neussler 127,  147 

McKee  v.  Brooks 375 

McKeever  v.  Westmoreland  Co.    374 


PAGE 

McKenzie  v.  Poor  Man  Mines.  407 
McKinley  v.  Mineral  Hill  Co.  407 

—  v.  Wheeler 64 

McKinley  Co.  v.  Alaska  Co. . . 

271,  388 

MeKinney  v.  Central  Ky.  Co. .  667 

McKinstry  v.  Clark 46,  99 

McKnight  v.  El  Paso  Co 

132,  139,  181,  182,  355 

McLaren  v.  Byrnes 329 

McLaughlin  v.  Del  Re 251,  292 

v.  Thompson 112,  379 

McLemore  v.  Express  Co.  .687,  688 

McLure  v.  Luke 347 

v.  Sherman 465 

McMillen  v.  Ferrum  Co 

32,  163,  625 

McNeil  v.  Pace 154 

MeXish  v.  Stone 668 

McPhe'rson  v.  Julius 

16,  35,  133,  184 

McShane  v.  Kenkle 30 

McVeigh  v.  Veig 121 

Me  Williams  v.  Winslow 40,  625 

N 

Nash  v.  McNamara 102,  134 

National  Mines  Co.  v.  District 

Court  47 •") 

National  M.  Co.  v.  Piccolo.  110,  436 

National  T.  Co.  v.  Weston 432 

Neilson  v.  Champaigne  Co. ...  118 

Nelson  v.  Brownell 279 

v.  Chittenden 103 

Nephi  Co.  v.  Juab  County. ...  -~~> 

Ness,  In  re 662 

Neuebaumer  v.  Woodman....  105 

Neuman  v.  Dreifurst 143 

Nevada  Co.  v.  Home  Co 

28,  30,  105,  139,  687 

v.  Miller 687 

v.  Spriggs 125,  254,  305 

New  Am.  Oil  Co.  v.  Trover. . . 

679,    680,  682 


730 


TABLE  OF  CASES  CITED. 


PAGE 

New  Am.  Oil  Co.  v.  Wolff. 679,  682 

Newark  Co.  v.  Upson 470 

New  Dunderberg  Co.  v.  Old..   447 
New  England  Co.  v.  Congdon.   687 

Newman  v.  Barnes 625 

v.  Newton 619 

New  Mercer  Co.  v.  Armstrong.  240 
New  Eiver  Co.  v.  Seeley. . . . . .  470 

New  York  Co.  v.  Rogers 453 

Nicholls  v.  Lewis  Co. .' 16 

Nichols  v.  Mclntosh 112,  113 

v.  Williams 40,  621 

Nielson  v.  Gross 367 

Niles  v.  Kennan 1.10,  443 

Noble  v.  Gustafson 329 

Nome  Co.  v.  Snyder 265 

No  Mistake  Lode  Case 608 

Nonamaker  v.  Amos 372 

Noonan  v.  Caledonia  Co 418 

v.  Pardee : .  480 

North  Am.  Co.  v.  Adams 

Ill,  112,  239 

Northmore  v.  Simmons.  .  .108,  119 

N.  Bloomfield  Co.  v.  U.  S 292 

Northern  Colo.  Co.  v.  U.  S. . . .  656 
Northern    Light    Co.    v.    Blue 

Goose  Co 365,  367 

North  Noonday  Co.  v.  Orient 

Co.. 27,  30,  32,  99,  198,  388,  440 
North  Star  Case  (See  Carson 

City  Co.  v.  North  Star  Co.) 

N.  W.  Ohio  Co.  v.  Ulery 673 

Norton  v.  Colusa  Co 290 

Noteware  v.  Stearns 242 

Nowell  v.  McBride 609 

v.  Int.  Trust  Co 325 

Noyes  v.  Black 99 

v.  Clifford 280 

v.  Mantle 282,  283,  286 

No.  5  Co.  v.  Brace 381 

0 

Oberto  v.  Smith Ill 

Occidental  M.  Co.  v.  Comstock 
-»    Co...  ..452 


PAGE 

O'Connell  v.  Pinnacle  Co 8 

O'Donnell  v.  Glenn 32,  45,     95 

O  'Hanlon  v.  Ruby  Gulch  Co . . 

147,  158,  606 

Ohio  Oil  Co.  v.  Indiana  Co 670 

Ohio  Ore  Co.  v.  Westfall 290 

O'Keefe  v.  Cannon..  .280,  281,  282 
O'Keiffe  v.  Cunningham.  .291,  292 

Oklahoma  v.  Kansas  Co 248 

O'Laine  v.  McGraw 310 

Old  Colony  Co.  v.  Carrick 346 

Old  Dominion  Co.  v.  Haverly. .   254 
Old  Tel.  M.  Co.  v.  Central  Co.  462 

Olive  Co.  v.  Olmstead 252,  687 

Omaha  Co.  v.  Tabor.. 376,  432,  448 

Omar  v.  Soper 101,  167,  187 

O  'Neill  v.  Risinger 681 

Oolagah  Co.  v.  McCaleb 419 

Ophir  Co.  v.  Carpenter 240 

Oppenlander  v.  Left  Hand  Co.  236 
Oreamuno  v.  Uncle  Sam  Co. . .   108 

Oregon  Co.  v.  Trull enger 240 

Oregon  Iron  Co.  v.  Hughes. . .   257 

O'Reilly  v.  Campbell 136,  390 

Original  Co.  v.  Abbott 441 

v.  Winthrop  Co 108 

Ormund  v.  Granite  Mt.  Co. 476,  483 

Ormsby  v.  Budd 355 

Osborn  v.  Arkansas  O.  &  G.  Co.  681 

Oscamp  v.  Crystal  R.  Co 133 

Osgood  v.  Bauder 452 

Osterman  v.  Baldwin 389 

Otaheite  Co.  v.  Dean 291,  466 

Overman  Co.  v.  Corcoran 27 

Oviatt  v.  Big  Four  Co 240 


Pacific  Co.  v.  Pioneer  Co 479 

Pacific  Coast  Co.  v.  Spargo. ..   213 
Pacific  Midway  Oil  Co.,  In  re.   424 

Pack  v.  Thompson 147 

Packer  v.  Heaton 123 

Page  v.  Fowler 432 

— —  v.  Summers 379 


TABLE  OF  CASES  CITED. 


731 


PAGE 

Palmer  v.  Tineas  Co 329 

Pantzar  v.  Tilly  Co 453 

Paragon  Co.  v.  Stevens  Co 152 

Pardee  v.  Murray 187,  191 

Parish    Fork    Co.    v.    Bridge- 
water  Co 110,  679 

Park  v.  Northport  Sm.  Co 451 

Park  County  v.  Comstock  Co. .   251 

Parker  v.  Furlong 461 

Parley's  Park  Co.  v.  Kerr. .  .4,     17 

Parrot  S.  Co.  v.  Heinze 

3.: 210,  213,  461,  463 

Parrott  v.  Palmer 460 

Patchen  v.  Keeley 450 

Paterson  v.  Ogden 304 

Patrick  v.  Colorado  Co 427 

Patterson  v.  Hewitt 461 

v.  Hitchcock 20, 

26,    34,    100,    173,   193,  195,  383 

v.  Tarbell 61 

Paul  v.  Cragnaz 368 

Paull  v.  Half erty 705 

Paxson  v.  Cresson  M.  Co 322 

Peabody  Co.  v.  Gold  Hill  Co. . 

20,179,181,  477 

Peachy  v.  Frisco  M.  Co.  ..109,  110 

v.  Gaddis 128,  168 

Pearce  v.  Aldrich  M.  Co 432 

Pelican  Co.  v.  Snodgrass.  .131,  150 

Penn  v.  Oldhauber 127 

Pennsylvania  Co.  v.  Bales. 438,  617 

v.  Lehigh  Val.  Co 301 

v.  Smith 343 

v.  Thomas 350 

Penny  v.  Central  C.  Co 474 

People  v.  De  France 476 

v.  District  Court 248,  418 

v.  Page 433 

v.  Sloper 433 

v.  Whalen 256,  484 

v.  Williams 434 

People's  Gas  Co.  v.  Dean 679 

—  v.  Tyner 669 

Peoria  Co.  v.  Turner 40,  573 


PAGE 

Perego  v.  Dodge 612 

Perelli  v.  Candiani 156 

Perry  v.  Acme  Oil  Co 369,  684 

Peters  v.  George 456 

Peterson  v.  Beggs 367 

v.  Bullion  Co 460 

Petroleum  Co.  v.  Coal  Co 380 

Peyton  v.  Desmond 451 

Pfeiffer  v.  University 245 

Pharis  v.  Muldoon 130 

Pheasant  v.  Hanna 372 

Philadelphia  Co.  v.  Park 686 

v.  Taylor 232 

Phillips  v.  Brill 687,  688 

v.  Hamilton Ill 

v.  Salmon  R.  Co 336 

Philpotts  v.  Blasdel 339 

Phipps  v.  Hully 483 

Phoenix  v.  Bijelich 348 

Phoenix  Co.  v.  Lawrence 99 

Pierce  v.  Barney 480 

Pike  v.  Empfield 330 

Pikes  Peak  Lode  Case 309,  590 

Pinney  v.  King 455 

Pioneer  Co.  v.  De  La  Motte. . .  329 

v.  Mitchell 447 

V.  Shamblin 245 

Pitts  v.  Wells 455 

Pittsburg  Co.  v.  Bailey 

344,  679,  680,  684 

v.  Glick 483 

v.  Greenlee 370 

v.  Spooner 410 

Plested  v.  Abbey 632 

Plummer  v.  Hillside  Co.. .  .300,  371 

Plymouth  Co.  v.  Com 452 

Pocahontas  Co.  v.  Williams .  . .  454 

Poe  v.  Ulrey 666,  679,  682 

Pollard  v.  Shively 57,  60,  62 

Poncia  v.  Eagle 171,  628 

Poole  v.  Union  Co 256 

Poore  v.  Kaufman 117,  628 

Porter  v.  Mack  Co 301 

—  v.  Noyes 112 


732 


TABLE  OF  CASES  CITED. 


PAGE 

Porter  v.  Tonopah  Co 149 

Portland  Co.  v.  Flaherty 453 

Possell  v.  Smith 409 

Poujade  v.  Ryan 37,  88 

Power  v.  Klein 465 

v.  Sla 621 

Prairie  Oil  Co.  v.  U.  S 248 

Presidio  Co.  v.  Bullis 345,  346. 

Prestos  v.  Hunter 94,  103 

v.  South  Penn.  Co 667 

Price  v.  Black 371 

Priddy  v.  Thomas 669 

Prince  v.  Lamb 380 

Pritchard  v.  MeLeod 344,  429 

Prosser  v.  Parks 4 

Protective  Co.  v.  Forest  City 

Co 105,  127,  436,  440,  480 

Protector  Lode  Case 309 

Providence  Co.  v.  Burke 

94,  150,  388,  390,  612 

v.  Marks 438,  610,  617 

v.  Nicholson 449 

Provolt  v.  Bailey 287 

Puget  Co.,  In  re 483 

Purdum  v.  Laddin 85,  94 

Pursel  v.  Eeading  Co 374 

Puzzle  M.  Co.  v.  Morse  Bros. 

Co 369 

Pyle  v.  Henderson 371 

Q 

Quigley  v.  Gillett 136,  617,  624 

Quimby  v.  Boyd...57,  97,  127,  619 

Quincy  Q.  Co.,  In  re 413 

Quincy  Co.  v.  Hood 452,  454 

Quinlan  v.  Noble 235 

Quinn  v.  Baldwin  Co 471 

v.  Silka 471 

Quirk  v.Falk 239 

B 

Rader  v.  Allen 181 

Rail  &  River  Co.  v.  Yaple 435 

Rains  v.  Schermerhorn 354 


PAGE 

Raisbeck  v.  Anthony 197,  200 

Rankin  's  Appeal 465 

Rara  Avis  Co.  v.  Bouscher 329 

Rathbun  v.  Snow 407 

Raunheim  v.  Dahl 171,  285 

Rawlings  v.  Armel 663 

v.Casey 617 

Raymond  v.  Johnson 378 

Real  del  Monte  Co.  v.  Pond  Co.  46' > 

Reavis  v.  Fianza .' .   638 

Rebecca  Co.  v.  Bryant 573 

Red  Mtn.  Co.  v.  Esler 417 

Red  Wing  Co.  v.  Clays 222 

Reed  v.  Golden 381 

v.  Hickey 344 

Reese  v.  Bald  Mt.  Co 331 

v.  Morgan  Co 453 

Regan  v.  Whittaker 307 

Reiner  v.  Schroder 43 

Remmington  v.  Bandit 122 

Renshaw  v.  Switzer 113 

Resurrection  Co.  v.  Fortune  Co.  448 

Reynolds  v.  Iron  S.  Co 283,  443 

—  v.Norman 330 

v.  Pascoe 40,     4o 

Riborado   v.    Qtiang   Pang   M. 

Co 4 

Rice  v.  Ege 34o 

v.  Rigley 380 

Rich  v.  Teasley 357 

v.  Victoria  Co 418 

Richards  v.  Dower 316 

v.  Wolfling 41 

Richardson  v.  El  Paso  M.  Co. .   45<> 

v.  Heney 41S 

v.  Lowe 34(5 

v.  National  Red.  Co 484 

Richen  v.  Davis 135 

Richmond  Co.  v.  Eureka  Co.  . .   226 

v.  Rose 16,  623 

Riddle  v.  Mellon 373 

Riley  v.  North  Star  Co 33^ 

Rillston  v.  Mather 4"> 

Ripley  v.  Park  Center  Co 24 1 


TABLE  OP  CASES  CITED. 


733 


PAGE 

R;sch  v.  Wiseman 104,  480 

Riste  v.  Morton 59,  147 

Ritter  v.  Lynch 291 

Riverside  Co.  v.  Hardwick 

106,  151,  265,  267 

Roaring  Creek  Co.  v.  Anthra- 
cite Co 289 

Robinson  v.  Imperial  Co 295 

Robinson  Co.  v.  Johnson 407 

Robnett  v.  U.  S 662 

Rockwell  v.  Graham 245 

Rogers  v.  Cooney 1 .251,  292 

Rooney  v.  Barnette 

26,  64,  135,  141,  266,  440 

Rorer  Co.  v.  Trout 357,  364 

Rose  v.  Lanyon  Z.  Co. 371,  679,  680 

v.  Richmond  Co 

178,  437,  623,  624 

Rosenthal  v.  Ives 437,  625 

Roseville  Co.  v.  Iowa  Gulch  Co.     10 

Ross  v.  Savage 366 

v.  Sheldon 373 

Ross  Oil  Co.  v.  Eastham 407 

Rough  v.  Simmons 616 

Rough  Rider  Case 200 

Round  Mtn.  Co.  v.  Round  Mtn. 

Co 215 

Roxanna  Co.  v.  Cone.  189,  205,  213 

Royal  K.  Placer  Case 262 

Royal  M.  Co.  v.  Royal  Mines 

Co 395 

Royston  v.  Miller 123,  139,  157 

Rubie  Co.  v.  Princess  Co 395 

Ruby  Co.  v.  Prentice 409 

Rush  v.  French 63,     99 

Russell  v.  Brosseau 131 

v.  Chumasero 95 

v.  Lambert 347 

Rymer  v.  S.  Penn.  Oil  Co 673 

S 

Safford  v.  Flemming 467 

St.  Anthony  Co.  v.  Shaffra.  . . 
197,  264 


PAGE 

St.  Clair  v.  Cash  Co 447 

St.  John  v.  Kidd 4 

St.  Louis  Co.  v.  Kemp 

121,  123,  178,  190,  259,  591 

v.  Montana  Co.  .196,  215, 

317,  338,.  462,  463,  464,  474,  628 
St.  Louis  Union  T.  Co.  v.  Gal- 
loway Co 372 

Salmon  v.  Symonds 304 

Salt  Lake  Co.  v.  Chainman  Co.  328 

Sampson  Co.  v.  Schaad 453 

Sanders  v.  Noble 39 

Sand  Point  Co.  v.  Pan  Handle 

Co 240 

Sands  v.  Cruikshank 26 

Sandy  R.  Co.  v.  Whitehouse. . .  447 
San  Francisco  Co.  v.  Duffield.  . 

203,   437,  608 

San  Francisco  Union  v.  R.  G. 

R.  Co 633 

San  Miguel  Co.  v.  Bonner 222 

Sargent     Land     Co.     v.     Von 

Baumbach 323 

Saunders  v.  La  Purisima  Co. . .  305 

v.  Mackey 156 

Savage  v.  Nixon 250 

Saxton  v.  Perry 270 

Scheel  v.  Alhambra  Co 251 

Schobert  v.  Pittsburg  Coal  Co.   366 

Schultz  v.  Keeler 63 

Schwab  v.  Beam 235 

Score  v.  Griffin 33 

Seagar  v.  McCabe. 256 

Searle  Placer  Case 262,  286 

Sears  v.  Taylor 4,  105,  437 

Seaver  v.  Snider 356 

Seidler  v.  Lafave 59 

v.  Maxfield 95 

Settle  v.  Winters 315 

Severson  v.  Bimetallic  Co 409 

Sexton  v.  Washington  Co 1-1 

Seymour  v.  Deiehor 323 

v.  Fisher.. 162,   167,   171,  ;^2 

Shackelford  v.  Sluss  Co 4_S 


734 


TABLE  OF  CASES  CITED. 


PAGE 

Shaf  er  v.  Constant! 608 

Shanks  v.  Holmes 110,  118 

Sharkey  v.  Candiani..  .  .30,  92,  623 

Sharum  v.  Whitehead 367,  466 

Shattuck   v.    Costello 59,  150 

Shaw  v.  Caldwell ." 376 

v.  Homer 368 

v.  Kellogg 392 

Shea  v.  Nilima 378,  389 

Sheaffer  's  Appeal 469 

Shepard  v.  Murphy 88 

Sherlock  v.  Leighton .  124,  137,  390 

Shively  v.  Bowlby 633 

Shoshone  Co.  v.  Butter. ...... 

168,  199,  201,  339,  612 

Shreve  v.  Copper  Bell  Co 

31,  198,  339 

Sieber  v.  Frink 112 

Sierra  Co.  v.  Sears 461 

Sierra  Blanca  M.  Co.  v.  Win- 

chell 101 

Silent  Friend  Co.  v.  Abbott. . .  428 

Silver  Co.  v.  N.  C.  Sm.  Co. 484 

Silver  Bow  Co.  v.  Clark 

171,  175,  178,  179 

Silver  City  Co.  v.  Lowry 

162,  373,  624 

Silver  Cord  Co.  v.  McDonald. .   453 
Silver  King  Co.  v.  Silver  King 

Co 417 

Silver  Peak  Mines  v.  Hanchett.  139 

Sisson  v.  Sommers 43,  440 

Slavonian  Co.  v.  Perasieh 128 

Sloss  Co.  v.  Sampson 233 

Slothower  v.  Hunter 

93,  150,  596,  625 

Smallhouse  v.  Kentucky  Co. . .   329 

Smart  v.  Jones 250 

Smelting   Co.   v.   Kemp.     (See 

St.  Louis  Co.  v.  Kemp.) 

Smith  v.  Belshaw 456 

v.  Bolles 355,  451 

v.  Cascaden 96 

v.  Hill...  ..   307 


PAGE 

Smith  r.  Idaho  Q.  Co 432 

v.  Imperial  Co 013 

v.  Jameson 462 

v.  Mt.  Gulch  Co. 136 

v.  Newell 56,  59,  63,  94 

— —  v.  O  'Kara 239 

v.  Oxford  Co 45.1 

v.  Eeynolds 343 

v.Russell 353 

v.  Sherman  Co 336 

v.  Steele 682 

v.  Union  Co 

25,  142,  263,  687,  689 

Smokehouse  Lode  Case 175,  307 

Smuggler  Union  Co.  v.  Kent . . 

449,  475 

Snider  v.  Yarbrough 345 

Snowflake  Fraction  Placer  Case  492 

Snyder  v.  Colorado  Co 234,  235 

Socorro  Co.  v.  Preston 395 

Souter  v.  Maguire 88 

South  End  Co.  v.  Tinney 

117,  155,  442,  478 

Southern  Coal  Co.  v.  Swinney.  454 
Southern  Cross  Co  v.  Europa 

Co 85 

v.  Sexton 118 

South  Nevada  Co.  v.  Holmes. .  210 

South  Star  Lode 284,  309,  590 

South  West  Co.  v.  Smith 453 

South  Yuba  Co.  v.  Rosa 235 

Soyer  v.  Gt.  Falls  Co 454 

Spadra  C.  Co.  v.  Eureka  C.  Co.  232 

Sparrow  v.  Strong 7,  24 

Spedden  v.  Sykes 348,  372 

Spelman  v.  Gold  Co 408 

Spokane  Co.  v.  Larsen 112 

Sprague  v.  Locke 471 

Springhetti  v.  Hahnewald 356 

Stahl  v.  Van  Vleck 471 

Stamey  v.  Hemple 140,  347 

Standley  v.  Roberts 373 

Stanford  v.  Felt 241 

Stanley  v.  Mineral  Union 310 


TABLE  OF  CASES  CITED. 


735 


PAGE 

Stanton  v.  Baltic  M.  Co 323 

Stark  v.  Perm  Co 447 

State  v.  Berryman 434 

v.  Burt 434 

v.  District  Court 

213,  475,  476 

— ' —  v.  Manhattan  Co 410 

v.  Ohio  Oil  Co 670 

Stearns-Koger  Co.  v.  Aztec  Co.  328 

v.  Brown 470 

Steel  v.  Gold  Co 597,  620 

Steele  v.  Tanana  Mines... 253,  263 

Steelsmith  v.  Gartlan 668 

Steinbeck  v.  Bon  Homme  Co. . 

346,  411 

Steinfeldt  v.  Omega  Co 250 

Stem  Winder  Co.  v.  Emma  Co .     16 

Stenfield  v.  Espe 271 

Stephenson  v.  Wilson 479 

Sterrett  v.  Northport  Co..  .293,  480 

Stevens  v.  Gill 199 

v.  Gr.  Central  Co 157 

v.  Williams 197,  202,  462 

Steves  v.  Carson 438,  624 

Stewart  v.  Douglas 380 

v.  Gold  Co 388 

Stewart  Co.  v.  Bourne 176,  177 

v.  Ontario  Co 

....176,  200,  206,  215,  461,  469 

Stilley  v.  Pittsburg  Co 302 

Stinchfield  v.  Gillis 

188,  198,  226,  337,  338 

Stinson  v.  Hardy 374 

Stockbridge  Co.  v.  Cone  Works 

449,  474 

Stolp  v.  Treasury  M.  Co 127 

Stone  v.  Marshall  Co 450 

Stone  Lode  Case.     (See   Iron 

Silver  Co.  v.  Elgin  Co.) 

Stoner  v.  Zucker 242 

Stonewall  Co.  v.  Peyton 61 

Stono  Mines  v.  Southern  Co. . .  483 

Stoughton  v.  Leigh 341 

Strahlendorf  v.  Eosenthal .  452,  454 


PAGE 

Straight  v.  Hover 290 

Strasburger  v.  Beecher 137 

Stratton  v.  Gold  Sov.  Co 316 

Stratton  's  Independence  v. 

Dines 355,  452 

v.  Howbert 323 

Street  v.  Delta  M.  Co 

11,  52,  59,  67,  109,  135 

Strepey  v.  Stark 

38,  164,  442,  443,  621,  623 

Strickland  v.  Commercial  Co..  271 

Strickler  v.  Colo.  Springs 235 

Strickley  v.  Hill 390,  615 

Strobel  v.  Kerr  Salt  Co 

290,  293,  461 

Stuart  v.  Adams 408 

v.  Com 322 

Sturtevant  v.  Vogel 38,  87 

Suessenbach  v.  Bank 157 

Suffolk  Co.  v.  San  Miguel  Co. .  291 

Sullivan  v.  Iron  Silver  Co 285 

v.  Sharp 621 

Summerlin  v.  Fronteriza  Co. . .  410 

Sun  Dance  Co.  v.  Frost 355 

Sunnyside  Co.  v.  Eeitz 447 

Sutherland  v.  Purdy 636 

Sutter  County  v.  Nicols 

248,  289,  290,  292 

Swanson  v.  Kettler 135 

v.  Koeninger 16,62,  95 

v.  Sears 134 

Sweeney  v.  Hanley 416 

Sweet  v.  Webber.. 50,  99,  141,  439 

v.  U.  S ~ 305 

Swigart  v.  Walker 118 

Symmes  v.  Sierra  Nevada  Co.  475 


Table  Mountain  Co.  v.  Strana- 

han 4 

Tabor  v.  Dexter 197 

Talbott  v.  King 175,  179 

v.  Southern  Oil  Co 670 

Tallon  v.  Vindicator  Co 322 


TABLE  OF  CASES  CITED. 


PAGE 

Talmadge  v.  St.  John 97,  106 

Tanner  v.  Treasury  Co 317 

Tartar  v.  Spring  Creek  Co 298 

Taylor  v.  Middleton 95,  108 

v.  Parenteau 18,  61 

' v.  Thomas 370 

Telluride  v.  Davis 235 

Tennessee  Co.  v.  Ayers 413 

v.  Burgess 457 

v.  Hamilton 288 

Terrible  Co.  v.  Argentine  Co. .  32 

Territory  v.  McKey.  . ; 434 

Texas  Co.  v.  Central  Fuel  Oil 

Co 354 

Thallman  v.  Thomas 

101,  106,  159,  180 

Thatcher  v.  Brown 132,  634 

Thayer  v.  Spratt 662 

Thistle  v.  Frostburg  Co 441 

Thomas  v.  Chisholm 64 

v.  Oakley 4G2 

v.  South  Butte  Co 443 

Thompson  v.  Jacobs 115 

v.  Pack 147 

v.  Spray 64,  65,  161,  167 

v.  Wise  Boy  Co 328 

Thornburgh  v.  Savage  Co 474 

Thorndyke  v.  Alaska  M.  Co ...  241 

Thornton  v.  Kaufman 153,  617 

Tiberg  v.  Warren 433 

Tiggeman  v.  Mrzlak 

40,  43,  62,  85 

Tinker  v.  Kier 410 

Tipping  v.  Bobbins 376 

Tischler  v.  Penn.  C.  Co 480 

Titcomb  v.  Kirk 242,  244 

Tombstone  Co.  v.  Way  Up  Co. 

202,  229 

Tombstone  T.  S.  Cases 307 

Tonopah  Co.  v.  Tonopah  Co ... 

32,  161,  162,  167,  621 

Toothman  v.  Courtney 358 

Tornanses  v.  Melsing 388,  412 

Townsend  v.  Peasley 232 


PAGE 

Traaphagen  v.  Kirk 252 

Trade  Dollar  Co.  v.  Fraser 465 

Travis  Co.  v.  Mills 289 

Treadwell  v.  Marrs 61 

Treasury  Co.  v.  Boss 163 

Tredinnick  v.  Red  Cloud  Co.  . .  328 
Trevaskis  v.  Peard. .  .111,  113,  128 

Trihay  v.  Brooklyn  Co 453,  457 

Trinity  Co.  v.  Beaudry 10 

Tripp  v.  Dunphy 122,  596 

Trotter  v.  Hecksher 427,  483 

Troxell  v.  Anderson  Co 366 

Trustees  v.  Lehigh  Valley  Co..  360 

Tucker  v.  Masser 592 

Tuolumne  Co.  v.  Maier.26,  39,  244 

Turk  v.  Rudman 347 

Turner  v.  Sawyer 

143,  147,  157,  503,  605 

v.  Seep 447,  685 

Tyee  M.  Co.  v.  Langstedt 480 

Tyler  Co.  v.  Last  Chance  Co . . 

163,  218,  475 

Tynon  v.  Despain 235,  242 

u 

Uinta  Co.  v.  Ajax  Co 25,  178 

v.  Creede  Co 177,  190 

Ulmer  v.  Farnsworth 232 

Ulrich  v.  Pateros  Co 242 

Uncle  Sam  Co.  v.  Richards 416 

Union  Co.  v.  Bank 395 

v.  Dangberg 243 

• v.  Leitch 37,     67 

Union  Oil  Co.,  In  re 265,  687 

U.  P.  Ry.  Co.  v.  Jarvi 453 

United  Merthyr  Co.,  In  re 446 

U.  S.  v.  Alien 658 

v.  Basic  M.  Co 664 

v.  Benjamin 664 

v.  Biggs -662 

— —  v.  Blackburn 253 

v.  Budd 661,  662 

v.  Carpenter 419 

v.  Clark ISO 


TABLE  OF  CASES  CITED. 


737 


PAGE 

U.  S.  v.  Comet  Oil  Co 681 

—  v.  Detroit  L.  Co 661 

v.  Diamond  Co 657 

v.  English 664 

v.  Exploration  Co 477 

v.  Fickett 9 

— —  v.  Freeman 662 

v.  Grimaud 421 

v.  Iron  S..Co 

fU 121,  179,  180,  259,  286 

v.  King 180,  555 

v.  Kostelak 657 

v.  Lavenson 421 

v.  Marshall  Co 179 

v.  Midway  Oil  Co 263 

v.  Midway  N.  Oil  Co 423 

v.  Midwest  Oil  Co 423 

v.  McCutchen. .  .164,  424,  689 

v.  North  Bloomfield  Co. . . 

289,  292 

v.  N.  Pac.  Ey 254,  657 

v.  Parrott 462 

v.  Plowman 664 

v.  Price  Co 665 

v.  Primrose  Co 663 

v.  Eeed 304 

v.  Ringeling 97 

v.  Eizzinelli 420 

v.  Bossi 199,  252,  664 

v.  San  Pedro  Co 392 

v.  Smith 3,  664 

v.  Sullenberger 662 

v.  Trinidad  Co 393 

v.  United  Verde  Co 664 

v.  Utah  Co 233 

v.  Winona  Co 180 

U.  S.  Graphite  Co.  v.  Pacific 

Co 427 

U.  S.  M.  Co.  v.  Lawson 

176,  196,  202,  445,  627 

Upton  v.  Larkin 

27,  39,  40,  60,  62,  95,  196 

v.  Santa  Eita  Co.  .37,38, 

51,  60, 117,  126, 137,  616,  622,  625 


PAGE 

Upton  v.  Weisling 356 

Uren  v.  Golden  T.  Co 457 

Utah  Co.  v.  Dickert  Co 127,  159 


Vail  v.  Freeman 683 

Valcalda  v.  Silver  Peak  Mines.  298 

Van  Buren  v.  McKinley 4,     97 

Van  Sise  v.  Ibex  Co 142,  148 

Vanesse  v.  Catsburg  Co 454 

Van  Gesner  v.  U.  S 662 

Van  Horn  v.  State 686 

Van  Ness  v.  Eooney 308 

Van  Wagenen  v.  Carpenter.. ..  417 
Van  Zandt  v.  Argentine  Co. . . 

32,  46,  211,  470 

Venture  Co.  v.  Fretts 668 

Vervalen  v.  Older 324 

Vietti  v.  Nesbitt 427,  483 

Virginia  Co.  v.  Kelly 300 

Vogel  v.  Warsing 58,  443,  461 

Von     Baumbach     v.     Sargent 
Land  Co 323 

w 

Wadleigh  v.  Phelps 325 

Wailes  v,  Davies 86,  124,  148 

Wakefield  v.  Sunday  Lake  Co.  371 

Wakeman  v.  Norton 183,  222 

Walker  v.  Bruce 367,  368 

v.  Pennington 85 

Wall  v.  U.  S.  M.  Co. 200,  202,  476 

Wallace  v.  Dorris 358 

v.  Hudson 10 

Walrath  v.  Champion  Co 

66,  191,  208,  215,  225 

Walsh  v.  Henry 106 

v.Mueller 27,  66 

Walton  v.  Wild  Goose  Co 278 

Ward  v.  Carp  Eiver  Co 3-4 

Wardell  v.  Watson 301 

Ware  v.  White 

127,  165,  271,  612,  618,  625,  689 
Warner  v.  Benjamin 4.31 


738 


TABLE  OP  CASES  CITED. 


PAGE  PAGE 

Warnock  v.  De  Witt.. .  .56,  67,  154  White  v.  Lansing 250,  4G5 

Warren  v.  Parkhurst 290  v.  Lee 270 

Washburn  v.  Alden 409  White  River  Co.  v.  Langston.  .   137 

v.  Inter-Mountain  Co 329  White  Star  Co.  v.  Hultberg 9 

Washington  Co.  v.  U.  S.  .657,  658  Whiting  v.  Straup 30, 

Waskey  v.  Chambers 340,  637          63,   64,   106,   263,   265,   687,  688 

v.  Hammer.. 65,  263,  264,  267  Whitmer  v.  Schenk 353 

Waterloo  Co.  v.  Doe ....  29,  46,  177  Whitney  v.  Haskell 26 

Waterman  v.  Banks 345  Whittaker  v.  Lindley 341 

Waters  v.  Stevenson.. 447  Wight  v.  Dubois 171 

Watervale  Co.  v.  Leach. . . .  187,  195  Wilhelm  v.  Sylvester 187 

Watson  v.  Colusa-Parrot  Co ...  290  Wilhite  v.  Skelton 354 

v.  Mayberry 39  Willeford  v.  Bell 30 

Watson  Co.  v.  James 355  Williams  v.  Gibson 301 

Webb  v.  Am.  Asphaltum  Co ...  259  v.  Hawley 329,.  331 

v.  Carlson 96 v.  Long 465 

Weed  v.  Snook 28,  30,  336,  687  v.  McKinley 410 

Weese  v.  Barker 88,  99,  445  v.  Morrison 375 

Wegerer  v.  Jordan 357  v.  Pomeroy  Co 480 

Weibold  v.  Davis 478  Williamson  v.  Jones 417 

Weill  v.  Lucerne  Co 339  Willison  v.  Ringwood 135,  623 

Welch  v.  Garrett 112,  240  Willitt  v.  Baker 132,  613,  628 

Wells  v.  Davis 93  Wills  v.  Blain 14S 

—  v.  Leek 380  v.  Nehalem  Co 410 

Welsh  v.  Lehigh  Co 457  Willson  v.  Cleaveland 113 

Wesling  v.  Kroll 373  Wilson  v.  Alpine  Co 453 

West  v.  Timber  Co 254  v.  Big  Joe  Co 366 

Westerlund  v.  Black  Bear  Co . .  395  v.  Gerhardt 370 

Western  Co.  v.  Berberich 455  v.  Harnette 199,  476 

West  Granite  Co.  v.  Granite  Co.     96  v.  Henry 479 

Westmoreland  Co.  v.  De  Witt.  v.  Smith 298 

3W,  667,  669  ^—  v.  Triumph  Co 105,  123 

West  Point  Co.  v.  Eeymert 462  Wilson  Co.  v.  U.  S 658 

West  Pratt  C.  Co.  v.  Dorman..  481  Wiltsee  v.  King  Co 39,     60 

Wettengel  v.  Gormley 673  Winchester  v.  Davis  Co 427 

Wetzstein  v.  Largey 334  Winter  v.  Bostwick 357 

Wheeler  v.  Smith 261  Winters  v.  Hub  Co 409 

v.  Walton  Co 427  Wiser  v.  Lawler 409 

v.  West 374  Woleott  v.  Johns 352 

Wheeling  Co.  v.  Elder 346,  354  Wolfe  v.  Childs 416 

Whistler  v.  MacDonald 368  Wolfley  v.  Lebanon  M.  Co.  171,  193 

White  v.  Barling 476  Wolfskill  v.   Smith.     (See  De 

v.  Century  Co 428         Wolf  skill  v.  Smith. ) 


TABLE  OF  CASES  CITED. 


739 


PAGE 

Wolverton  v.  Nichols 613 

Womble  v.  Womble 382 

Wood  v.  Aspen  Co 390 

v.  Etiwanda  Co 112 

v.  Saginaw  Co 407 

Woodruff  v.  Gunton 372 

v.  N.  Bloomfield  Co 292 

Woods  v.  Montevallo  Co 479 

Woodside  v.  Ciceroni 375,  380 

Woodward  v.  Mitchell :. .  365 

Woodworth  v.  McLean 381 

Woody  v.  Barnard 127 

v.  Hinds 618 

Work  M.  Co.  v.  Doctor  Jack 

Pot  Co 177 

World's  Fair  Co.  v.  Powers. . .  353 

Worthen  v.  Sidway 270 

Worthen  Mills  v.  Alaska  Co. . 

296,  635 

Worthington  v.  Gwin 428 

Wright  v.  Ascheim 470 

v.  Hartville 254,  609 

v.  Killian 127 

v.  Lyons 67,  97 

Wulf  v.Manuel ,  ..620 


PAGE 
Yarwood  v.  Cedar  Canyon  Co. .  471 

v.  Johnson 156,  157 

York  v.  Davidson 289 

Yosemite  Co.  v.  Emerson 

4,  38,  151,  621 

Youghiogheny  Co.  v.  Hopkins.  302 

Young  v.  Bankier  Dist 293 

v.  Goldsteen 609,  612 

v.  Northern  Co 324 

Young's  M.  Co.  v.  Courtney. . .  371 

Yreka  Co.  v.  Knight 123,  443 

Yuba  County  v.  Kate  Hayes 

Co 289 

Yunker  v.  Nichols...  ,.  242 


Zeiger  v.  Dowdy 150,  182 

Zelleken  v.  Lynch 354,  365 

Zerres  v.  Vanina...29,  85,  86,  150 

Zimmerman  v.  Funchion 267 

Zobel  v.  Fannie  Rawlings  Co. .  449 
Zollars  v.  Evans 30 


INDEX 


PAGE 

ABANDONMENT 108 

Of  Possessory  Claim 9,  10,  108 

Of  Ditch 112,  240 

Conditional Ill 

Eelocation  after 149 

Of  Undivided  Interest 157 

Of  Tunnel 318 

Pleading   113,  136,  620 

Distinguished  from  Forfeiture 110 

ABSTRACT  OF  TITLE— 

In  Examining  Title ' 383 

On  Application  for  Patent. 562 

On  Adverse  Claim 602 

ACCIDENTS ; 452 

ACKNOWLEDGMENT   341 

By  Individual 332 

By  Wife 341,  384 

By  Corporation ". 342,  414 

By  Attorney  in  Fact 342 

To  Contracts 353 

To  Articles  of  Incorporation 397 

Notary  Public 's  Commission 333 

ACREAGE— 

Of  Lode  Claim 577 

Of  Placer 279 

Government  Price 577 

ADMISSIONS — By  Relocation '. 149 

ADVERSE  CLAIM  (see  FORMS  ;  EJECTMENT) 599 

By  Known  Lode 283 

By  Mill  Site 299 

By  Tunnel  Site 319 

Connection  between  Suit  and  Application 616 

Ejectment  Supporting 437 

Special  Act,  Alaska 634 

By  Whom  Verified 603 

By  Co-Owner 605 

Amendment  of 607 

(741) 


742  INDEX. 

PAGE 

What  Should  Adverse 608 

Proceedings  After  Determination 626 

Annual  Labor  Pending 627 

Statute  Concerning,  §  2326 646 

Land  Office  Eules 511 

Form  of 600 

Complaint  Supporting 614 

Answer  in 618 

Certificate  of  Suit 611 

Effect  of  Failure  to  Assert 171 

Waiver  of 624,  628 

ADVERSE  POSSESSION 479  / 

AFFIDAVIT— 

Of  Annual  Labor 139  - 

Of  Citizenship 564 

In  Land  District 565,  577 

By  Agent 578,  604 

AGENT— 

Location  by *. 63 

Lease  by 369 

Powers  of  Corporation  Agent 407 

Agency  Locations  in  Alaska 635 

Adverse  by 604 

Process  Agent 414 

To  Procure  Patent 578 

Commissions  to 347,  409 

AGRICULTURAL  LANDS 304 

ALASKA  634 

New  Mining  Districts  in 3 

District   Rules 3 

Location  of  Lode  Chiim  in 69 

Location  of  Placer  in 272,  635 

Tide  Lands  in 635 

Timber  in 665 

Land  Office  Rules  Concerning. 494,  497,  499,  500,  506,  513,  515,  523 

No  Resumption  of  Labor  in 132 

Miners'  Lien  Act 329 

Old  Titles  in 634 

Special  Legislation 634 

Rights  of  Canadians  in 653 

Coal  Land  in 637 

Adverse  Claims  in 599 


INDEX.  743 

PAGE 

ALIENS 387 

AMENDMENT— 

Of  Location  or  Record 160,  165,  214 

Of  Adverse  Claim 607,  618 

ANGLES 54,  229 

When    Necessary 230 

ANNUAL  LABOR 114 

What  Counts  for 121 

What  Will  Not  Count 122 

Outside  the  Claim 123 

On  Group  Claims 123,  126 

Burden  of  Proof 124,  136 

Proof   of , 137 

Benefit  to  the  Claim 124 

By  Tunnel 126,  319 

On  Old  Lodes 115 

Equity  of  the  Law  Requiring 136 

On  Placers 140 

On  Oil  Claims 142 

Pending  Patent 117,  627 

After  Year  Expired 128 

After  Entry 118 

Certificate  in  Lieu  of 139 

Time  to  Perform 119 

Who  May  Perform 121 

District  Rules 115,  127 

Pending  Adverse 627 

On  Ground  in  Litigation 139 

Unwatering  the  Mine 125 

Pleading   113 

Contract  to  Perform 140,  339 

Roads  and  Trails  as 245 

In  Alaska 634,  636 

On  Overlap 132 

Affidavit   of 137 

Resumption  of 128,  132,  153 

APEX    203 

Stakes  Must  Cover 54 

Survey  Presumed  to  Include 183 

No  Apex,  No  Dip  Rights 225 

Statute,  §  2322 642 


744  INDEX. 

PAGE 

Of  Side  Veins 190 

Crossing  Side  Line 210 

Covered  by  Several  Patents 214 

APPLICATION  FOE  PATENT.     See  FORMS 540 

Land  Office  Rules 493 

Survey  for 526 

Circular  to  Applicants 535 

Adjoining  Claims 558 

By  Agent. 578 

By  Corporation 580 

On  Surveyed  Lands 588 

For  Mill  Site 580 

Cancellation  of  Entry 573 

By  Trustee 596 

"Without  Record  Title , 597 

Conflicting 175,  597 

Statute,  §  2325 644 

Relation  of  Suit  to  the 616 

APPROPRIATION 23 

Of  Water 233 

APPURTENANCES 239,  251 

AREA.  ^  See  ACREAGE. 

ARIZONA— 

Location  of  Lode  Claim  in 70 

Location  of  Placer  in 274 

ASPHALT 255,  261,  426 

ASSAY  482 

As  Evidence  of  Discovery 484 

Dummy.    See  GLOSSARY. 

ASSESSMENTS 405 

ASSOCIATION  OF  PERSONS 12,  -or, 

Nominal 13,  265 

ATOMIC  WEIGHTS,  TABLE  OF 711 

ATTORNEY  IN  FACT— 

Acknowledgment  by 342 

Power  to  Apply  for  Patent 579 

BLANKET  VEINS 206 

BLASTING  ..  ..   40.3 


INDEX.  745 

BOUNDARIES—  PAGR 

Staking   59 

Monuments  Control 61 

Immaterial  Calls 94      97 

Variance,  Lost  Corner 62 

BUILDING  STOXE 260,  261,  653,  658 

BUREAU  OF  MINES 481 

BY-LAWS 398 

CALIFORNIA— 

Location  of  Lode  in 71 

Mining  Act  of  1909 5 

Supplemental  Record  in 443 

Location  of  Placer  in 274 

CANADIANS— 

Rights  of,  in  Alaska 653 

CHILDREN— 

Employment  of 436 

CHINESE 391 

CITIZENSHIP— 

Land  Office  Rules 509 

Form  of  Proof 564 

Statute,   §  2321 642 

Of  Corporation 509,  565 

Pleading  and  Proof  of 390 

Proof  by  Witnesses 565 

CLAIM.     See  POSSESSORY  CLAIM;  LODE;  PLACER. 

Acreage  of  Lode 577 

Acreage  of  Placer 279 

Length   12-1G 

Width  17 

Side  Claims 12 

Divided  into  Lodes  and  Placers 259 

Possessory  6-l(» 

Right  to  Swing 3J 

Overlapping 51,  18J 

Fractions   51,  270 

COAL  LANDS 655 

In  Alaska 637 

Are  Mineral  Lands 254' 

Separate  Patent  for  Surface 658 


746  INDEX. 

COAL  MINES—  PAGE 

Drainage 232 

Penal  Regulations  of 435 

COLORADO— 

Location  of  Lode  in 68 

Location  of  Placer  in 258 

COMMISSION 347,  409 

COMMISSIONER  OF  MINES 481 

CONDEMNATION  242,  248 

CONTIGUITY  OF   CLAIMS 123,  285 

CONTRACT— 

Mining  Sale 343 

Prospecting  376 

Contracts  for  Work 381 

To  Pay  Out  of  Mine 428 

CONVEYANCE 331 

Before  Record 166 

Of  Water  Rights 239 

Agreements  for 343 

In  Examining  Title 384 

Of  Cross  Lode 188 

Form  of  Warranty 332 

Form  of  Quit  Claim 333 

Subdividing  Lode 336 

Acknowledgment .332,  341 

Escrow   352 

Mining  Deed 334 

Witnesses    340 

Short  Form  Deed 335 

Wife's  Signature 341,  384 

By  Corporation 341,  395 

CORPORATIONS 393 

Location  by 64 

Foreign 413 

Citizenship  of ' 509,  565 

Corporation  Deed 341,  395 

Mortgage  by 395 

Filing  Fees 404 

Form  of  Articles 396 

Amendment  of  Articles 412 

First  Meeting 398 


INDEX.  747 

PAGE 

By  Laws 308 

Seal 395 

Annual  Eeport 402 

Smelting  and  Sampling  Companies 403 

Ditch  Company 402 

License  Tax 404 

Assessments 397,  405 

Powers  of  Officers 407 

Powers  of  Manager 407 

Acknowledgments  by » 342,  414 

Application  for  Patent  by 580 

Promoters,  Prospectus ^ 409 

Eeorganization,  Succession 411 

Dissolution 413 

COSTS— 

In  Adverse  Suit 615 

CEEVICE    45 

CEIMES  432 

CKOSS  CUT.    See  TUNNEL;  TUNNEL  SITE. 

CKOSS  LODES 185 

In  Conveyance 188,  338 

CUSTOM.    See  DISTRICT  EULES. 

DAMAGES— 

In  Trespass 446 

For  Negligence 452 

Measure  of 446 

Tor  Dumping 288 

On  Condemning  Ditch 242 

In  Oil  Trespass 423,  685 

DEAD  WOEK 358 

DEED.    See  CONVEYANCE. 

DEPAETUEE  FE"OM  SIDE  LINES 192,  210 

DEPOSITS— 

In  Place 197,  202 

Eichness  of 198 

DEPUTY  SUEVEYOE.    See  MINERAL  SURVEYOR. 

DESCEIPTION 87,     90 

Defective  59,     91 

In  Conveyance 335,  384 


748  INDEX. 

PAGE 

ID  Lease 362 

Wrong  in  Patent 181 

DESCRIPTIVE  REPORT 585 

DIAGRAM  OF  LODE 53,  56,  89 

Showing  Excess  Width 20 

Showing  Apex 211,  217,  221 

Of  Official  Survey 544 

Of  Angled  Lode 231 

DIP 223 

Of  Deposits  or  Contacts 205 

Veins  Uniting  on 188 

Right  to  Follow 203 

Plats  Showing 211,  217 

Table  of  Degrees - 224 

Discovery  on 211 

DISCOVERER 28 

DISCOVERY— 

On  Old  Lodes 21 

Under  Present  Law 22 

After  Location 29 

Point  of,  Where  Made 33 

On  the  Dip 211 

Methods  of 33 

In  Open  Cut 33,  47 

In  Tunnel 47,  49 

Gives  Title 25 

First,  Holds 173 

When  Complete 27 

By  Drill  Hole 33 

Time  It  Holds  Claim 34 

On  a  Spur 228 

'     Location  Without 438 

Essentiality  of,  How  Proved 26 

Outside  of  Discovery  Shaft .' 31 

Secret  Underground 48 

Knowledge  of  Value 262 

On  Placers 262 

On  Oil  Claims 687 

DISCOVERY  SHAFT— 

And  Discovery  Distinguished 30 

Statute  Requiring 22,     23 

Must  Be  Ten  Feet  Deep 22,     43 


1ADEX.  749 

PAGE 

Subsequent  Deepening 44 

Depth,  How  Measured 43 

Must  Show  Crevice 27,  45 

Need  Not  Show  Pay. 30,  45 

Must  Be  on  Public  Domain 39 

On  Town  Site  or  Placer 41 

Patent  Over 41 

Claim  Must  Include 42 

Sale  of 42 

Time  to  Sink .23,  34 

Where  Sunk 33 

In  Slide  or  Country 46 

In  Broken  Ground 46 

Walls  in 45 

For  Each  Claim 46 

Relocation  on  New 162 

DISTRICT    RULES .' 1 

Affecting  Labor 115,  127 

DITCH  COMPANY 402 

DITCHES   233,  243 

Abandonment  of 112 

Location  Notice 236 

Location  Certificate  or  Statement 237 

As  Appurtenances 239 

Parol  License  to  Construct 241 

Condemnation  Proceedings 242 

Surplus  or  Waste  Water 241 

DOWER 341 

DRAINAGE 231 

DUMMIES 265 

DUMP 249 

Location  of 290 

For  Tailings 291 

For  Tunnel 314 

EASEMENTS  233,  243 

EIGHT-HOUR  LAW 436 

EJECTMENT  436 

Supporting  Adverse 437,  623 

Proper  Court 610 

Certificate  of  Suit 611 

1 


750  INDEX. 

^ 

PAGE 

Form  of  Complaint 614 

Form  of  Answer 618 

To  Recover  Ditch 445 

Nonsuit 625 

Verdict  in 622 

ELECTRIC  POWER  LINES 246 

EMINENT  DOMAIN 242,  248 

Colorado  Tunnel  Act 317 

END  LINES— 

On  Prior  Claims 51 

Reforming   163 

Parallel 204,  207 

Converging 209 

Plats  Showing 217,  221 

Relatipn  to  the  Strike 216 

One  Set  for  All  Veins 215 

Following  Lode  Beyond 218 

ENTRY— 

Annual  Labor  After 118 

Death  of  Applicant 596 

Of  Area  Not  in  Dispute 626 

Cancellation  of 573 

ESCROW 352 

ESTOPPEL 143 

EXAMINATION  OF  TITLE 382 

EXCLUDED  AREAS 176,  548,  572 

EXHAUSTED  MINE 366 

EXTENSIONS   ., 107 

FAULT 200,  366 

FEDERAL  DECISIONS 10 

FEEDERS 228 

FEES— 

Of  Surveyor  General 538 

In  Land  Office 571 

Of  Secretary  of  State 404 

FIDUCIARY  RELATIONS .65,  156,  158 

FIXTURES  ..  ..369 


INDEX.  751 

FLOAT  ORE—  PAGE 

Location  on 29 

FLOODING 231 

FORCIBLE  DISPOSSESSION 435,  471 

FORCIBLE  ENTRY 446 

FOREIGN  CORPORATIONS 413 

FOREST  RESERVE  (see  NATIONAL  FORESTS). 

FORFEITURE  (see  ABANDONMENT) 142 

Two  Parties  Essential  to 128 

Relocation,  before  Complete 130,  135 

To  Co-Owner 142 

To  Co-Lessee 368 

Notice 145 

Of  Lease 371 

Of  Oil  and  Gas  Lease 681 

Relief  Against 372 

Form  of  Proof 145 

Of  Placers 141 

Pleadings 113,  136,  620 

FORMS— 

Acknowledgment — • 

By  Individual 332 

By  Corporation 342,  414 

By  Attorney  in  Fact 342 

To  Articles  of  Incorporation 397 

Agreement  to  Sell 344,  348-351 

Amended  Location  Certificate 160 

Annual  Labor  Affidavit 139 

Articles  of  Incorporation 396,  402,  403 

Assessment   406 

By-Laws 398 

Certificate  of  Stock  Paid 401 

Contract  to  Sell  and  to  Buy .'....  350 

Designation  of  Agency 414 

Ditch  Incorporation 402 

Ditch  Statement 237 

Ditch  Notice 236 

Dump  Location  Notice 314 

Ejectment,  Complaint  and  Answer 614,  618 

Escrow 352 

Forfeiture  Notices 145,  146 

Grub  Stake  Contract 376,  377 


752  INDEX. 

P.'.GF. 

Injunction  Notice 4G7,  4~<:l 

Lease  on  Lode 359 

Lease  on  Placer 302 

Lease,  Gas  and  Oil 674,  676 

Lease  and  Option 351 

Lode  Notice 37,  38 

Lode  Location  Certificate 90 

Milling  Company  Articles 403 

Mill  Returns 363 

Mill  Site  Location  Notice 295 

Mill  Site  Location  Certificate 295 

Miner's  Lien 327 

Mining  Company  Articles 396 

Notice  to  Ore  Buyers 431 

Oil  and  Gas  Lease -. 674,  676 

Option 351 

Organization  Meeting 398 

Placer  Notice 268 

Placer  Location  Certificate 271 

Placer  Lease 362 

Prospector 's  Notice 37 

Prospecting  Contract 376,  377 

Protest 631 

Quit  Claim  Deed 333 

Relocation  Certificate 160 

Resolution  to  Assess 406 

Reservation 340 

Sale  Subject  to  Examination 349 

State  Land,  Location  on 310 

Title  Bond 344 

Tunnel  Location  Notice 314 

Tunnel  Location  Certificate 312 

Warranty  Deed 332 

Working  Contract  Sale 348 

FORMS  IN  APPLICATION  FOR  PATENT— 

A.     Request  for  Official  Survey 540 

S.     Order  for  Survey 541 

C.  Preliminary  Plat 545 

D.  Field  Notes 545 

E.  Approval  of  Survey 553 

F.  The  Final  Plat 554 

G.  Surveyor  General's  Approval  of  Survey  and  Certificate  of 

Improvements 554 

E.     Approved  Field  Notes 555 


INDEX.  753 

I'AGE 

I.      Surveyor  General 's  Certificate  to  Transcript 555 

K.     Notice  of  Application 557 

L.     Proof  of  Posting 559 

M.     Application   560 

N.     Abstract  of  Title 562 

O.     Proof  of  Citizenship 564 

P.     Publisher 's  Contract 566 

Q.     Publication  Notice 567 

S.     Proof  of  Notice  Remaining  Posted 570 

S.     Proof  of  Publication 571 

T.     Proof  of  Sums  Paid 571 

17.     Application  to  Purchase 572 

F.     Register's  Certificate  of  Posting 574 

W.    Register  >a  Final  Certificate  of  Entry 574 

X.     Affidavit  of  Lost  Receiver 's  Receipt 575 

r.     Power  of  Attorney 579 

Mill-Site— 

Z.     Non-Mineral  Affidavit 581 

AA.     Affidavit  of  Use  for  Mining  Purposes 581 

Placer — 

BB.     Proof  of  No  Veins 584 

CC.     Descriptive  Report 585 

DD-GG.     Exhibits  of  Descriptive  Report 586-588 

FORMS  IN  ADVERSE  CLAIM— 

EH.     The  Adverse 600 

JJ.     Certificate  of  Suit 611 

KK.     Complaint  Supporting 614 

LL.     Answer 618 

MM-NN.     Verdicts 622 

FRACTIONAL  CLAIMS 51,  270 

Apex  Rights  of 337 

FRAUD   355 

Patent  Obtained  by 178 

Sale  Induced  by 355 

Between  Fiduciaries 158 

Location  Initiated  by 105 

Location  Prevented  by 65 

Fraudulent  Corporate  Organization 410 

GLOSSARY  OF  MINING  TERMS 693 

GROUP  CLAIMS— 

Apex  Rights  of 214 

Annual  Labor  on 123 


754  INDEX. 

PAGE 

Miner's  Lien  on 328 

Patenting 591 

$500  Improvements 592 

Survey  of.     L.  O.  Eeg.  130 526 

GRUB  STAKE  CONTRACT 376,  377 

HIGH  GRADING 434 

HIGHWAYS  244,  309 

HOLIDAYS 607 

HOMESTEAD    279 

640  Acre  Act 692 

IDAHO— 

Location  of  Lode  in 71 

Location  of  Placer  in 275 

IMPROVEMENTS.     See  LAND  OFFICE  REGULATIONS. 

$500  Worth 117,  593 

What  Counts  as... 121,  593 

By  Tunnel 320 

On  Mill  Site 582 

Completed  Pending  Publication 595 

On  Adverse 603 

Mining  Under 301 

INDIAN  RESERVATION 418 

INJUNCTION : 459 

Against  Tailings 288,  466 

Notice  to  Ore  Buyers 431 

INSPECTION  AND  SURVEY— 

On  Examination  of  Title 383 

In  Aid  of  Suit 473 

By  Court  or  Jury 476 

INSPECTOR  OF  MINES. 481 

INSTROKE 366 

INTERFERENCE  OF  CLAIMS 182 

INTERSTATE  COMMERCE 248 

IRON 583 

IRRIGATION 243 

JUDGMENT— 

Lien  of 323 

JUMPING  ACT 435,  471 


INDEX.  755 

JURY  TRIAL—  PAGE 

Right  of 444 

KNOWN  LODES— 

Excluded  from  Placer 280 

What  Are 281 

Not  Recorded 282 

Adverse  by 283,  591 

Proof  of » 285 

Width  of , 286 

Patenting 590 

LACHES  346,  460 

LAND  OFFICE  REGULATIONS 485 

Abstract  of  Title [Reg.  or  Rule  42] 

Adjoining  Claims,  Call  for [10] 

Adverse  Claim [78-88] 

Affidavit,  Who  May  Take [69] 

Affidavit,  Out  of  District [69] 

Agent,  Verification  by [79,  80] 

Agricultural  and  Mineral  Contests [99-111] 

Alaska [34,  39,  41,  42,  60,  84,  89,  112,  113] 

Annual  Labor [12-15,  55] 

Application  for  Patent [34-57] 

Area  and  Conflicts [38,  44,  149,  152,  153] 

Diagram  of  Claim [161] 

Entry [52] 

Proof  of  $500  Improvements [25,  48-50] 

Lost  Records [43] 

Newspaper [45-47,  89] 

Newspaper  Charges [89] 

Joint  Survey [162-166] 

Notice  of [39,  46] 

Numbering  Surveys  and  Entries [36,  72] 

Official  Survey [34,  35] 

General  Provisions [115-169] 

Posting  Plat [39,  40,  51,  73] 

Proof  of  Sums  Paid [52] 

Publisher's  Contract [45] 

Statement  of  Claimant [41] 

Building  Stone [20,  114] 

Certificates  of  No  Suit [76,  88] 

Chain  of  Title  Broken [74,  75] 

Citizenship,  Proof  of [66-70] 

Deputy  Surveyors [89-94,  115-121,  128] 

Descriptive  Report  on  Placer [1(57] 


756  INDEX. 

PAGE 

Errors  in  Surveys [Keg.  or  Rule  102-166]   48j 

Fees  and  Charges [89,  91,  94,  95,   120,  122] 

Forest  Reserves [114] 

Forfeiture [15] 

Group  Surveys [130] 

Hearing  to  Determine  Character  of  Laud [OP-lll] 

Improvements [150-160] 

Location [4-11] 

Lode  Claims,  Length [4] 

Width [5] 

Size [6] 

In  Placer [26,  151] 

Mill  Sites [61-65,  150] 

Mineral  Surveyors [89-94,  115-121,  128] 

Mining  Claims,  of  Two  Kinds [1] 

Monuments : [9,  36,  135-142,  147,  158] 

National  Forests [114] 

Oil  Claims [21] 

Old  Lodes,  Status  of [2]          < 

Placer  Claims,  Location  and  Patenting  of [19-30,  58-60] 

Possessory  Right  by  Limitation [74-77] 

Protest   [53] 

Railroad  Selections [44,  101] 

Record [11,  18] 

Salines   [31-33] 

School  Lands [20] 

Segregation  of  Mineral  Land [108] 

Side  Veins [2,  3] 

Stakes  and  Corners [10,  143-146] 

Surveyor's  Report  to  Land  Office [37] 

Ties [9,  36,  135-142,  147,  158] 

Timber   [114] 

Trustee,  Application  by [54] 

Tunnels ". [16-18] 

LARCENY 433 

LEASE  357 

On  Lode 359 

On  Placer 362 

On  Oil  and  Gas 674,  676 

By  Agent 369 

By  Co-Tenant 370 

And  Option 351 

Assignment  of 370 

Non- Assessable  Interest  in 370 


INDEX.  75- 
PAGE 

Right  to  Quit 367 

Forfeiture 371 

LEDGE 196 

LENGTH  OF  LODE  CLAIM— 

Before  May  10,  1872 12 

At  Various  Dates 14 

Since  May  10,  1872 15 

How  Distributed 15 

Excessive   16 

LICENSE 374 

Of  the  United  States 6 

To  Construct  Ditch 241 

By  Co-Tenant 376 

LIENS 323 

How  Affected  by  Patent 323 

Miner's 326 

Covenant  Against  in  Lease 361 

Surveyor 's 330 

In  Examination  of  Title 386 

Of  Partner , 325 

LIMITATIONS,  STATUTE  OF 477 

LOCATION 22-68 

Definition  of 35 

How  Proved 95 

Length  of 15 

Width  of 17 

Location  Year 119 

Three  Successive  Locations 133 

Date  of 25,  119 

Statutory  Requirements  in  Each  State  as  to  Lodes 68 

Formal  Parts  of 25,  35 

Time  to  Complete 52 

When  Complete 25,  35,  119 

Of  Old  Lodes 21 

Of  New  Lodes 22 

Of  Placers 257 

Of  Tailings  Claim 290 

Diagram  of 53,  56,  89 

Staking  Boundaries 50 

Not  Covering  Vein 54 

Before  Discovery 29,  438 

Must  Be  Good  When  Made 41 


758  INDEX. 

PAGE 

Excessive   16,  20,  267 

Possession  Without 104,  106,  438 

One  or  Both  Parties  in  Default 100,  103 

Initiated  by  Trespass 105,  269 

Prevented  by  Collusion 65 

Fraudulent 68 

Presumption  of 443 

Land  Office  Rules 485 

Without  Surveyor 54 

Of  Tunnel  Site 312 

Of  Lode  as  Placer 107 

Of  Dump 314 

Of  Lode  Cut  in  Tunnel 315 

Across  the  Strike 66 

Conflicting 182,  339 

Right  to  Swing 39 

LOCATION  CERTIFICATE 84-107 

Statutory  Requirements 68 

Must  Tie  the  Claim 57,  94 

Description  of  Claim 58,  90 

Defects  in 91,  94 

Rule  of  Construction 93 

Form  of  Lode 90 

As  Proof  of  Location 443 

Contradicting 96 

Test  of  Sufficiency 96 

Signatures  63 

Amended 160 

Where  Voidable  Only . 165 

Form  of  Ditch 237 

Form  of  Placer 271 

Form  of  Mill  Site 295 

Form  of  Tunnel 312 

In  Examining  Title 384 

Verification  of 75,  97 

LOCATION  MONUMENT 94,  527 

LOCATION  NOTICE— 

Statutes  Requiring 22,     68 

On  Lode 37,     38 

On  Ditch 236 

On  Placer 268 

How  Posted 36 


INDEX.  759 

PAGE 

Place  of  Posting 37 

Materiality  of 38 

Changing  Names  on 166 

Eenewing 35 

LOCATION  STAKE 35 

Notice  on 37 

Removal  of 434 

LODE— 

Defined 196 

Length  of  Old  Claims 12 

Present  Length 15 

Width 17 

Discovery  and  Location 22-83 

Size  and  Value 31 

Uniting  on  Dip 182,  188 

Wider  Than  Claim 195 

Proof  of  Continuity 199-202 

Side  Veins 190,  191 

« '  In  Place  " 197,  202 

Test  of  Value .' 198 

Record 84 

Diagram 53,  56,     89 

Interference  182 

Within  Placer 280 

Cross 185 

Location  Over  Placer 283,  309 

Cut  in  Tunnel 315 

Cubic  Incidents  of 225 

Other  Incidents  of 182 

And  Placer  Distinguished 583 

Group  of,  in  Patent 591 

Blanket  Veins 206 

Change  of  Name 167 

Presumption  That  Survey  Covers 183 

Leaving  Side  Line 192 

LODES,  VEINS  AND  LEDGES 196 

MALICIOUS  MISCHIEF 435 

MAPS 445 

MARRIED  WOMAN 341,  384 

MEASURE  OF  DAMAGES  (see  DAMAGES) 446 

METEORITE 257 


760  INDEX. 

PAGE 

MEXICAN  GRANT  ...........................................  391 

MEXICAN  MINING  LAW  .....................................  689 

MILITARY  RESERVATION  ...................................  654 

MILL  RETURNS  .............................................  363 

MILL  SITE.  .  ................................................  294 

Application  for  Patent  on  ..................................  580 

Adverse  and  Protest  .......................................  299 

Separate  Application  .......................................  299 

Must  Be  Non-Mineral  ......................................  297 

Location  Certificate  ........................................  295 

Patented   .................................................  303 

Land  Office  Rules  ..........................................  508 

Non-Mineral  Affidavit  ......................................  581 

MINERALS  .....  ....................  .  ........................  256 

In  River  Bed  ..............................................  310 

MINERAL  LAND  .............................................  252 

Comparative  Value  .....................................  199,  252 

MINERAL  SURVEYOR  .......................................  515 

Can  Not  Locate.  .-  .......  ......................  ............  65 

MINERAL  VALUE  ........................................  198,  262 

MINERAL  WATER  ...........................................  310 

MINER'S   LIEN  ..............................................  326 

MINER'S  RIGHTS  ...........................................  9 

MINER'S  TITLE— 

Recognition  of  ............................................  6 

Nature  of  Estate  .........................................  .168 

MINES— 

At  Common  Law  .................................  ..........  255 

Open  or  Unopened  .........................................  256 

MINING  CLAIM.    See  CLAIM  ;  POSSESSORY  CLAIM  ;  LODE  ;  PLACER. 

MINING  DISTRICTS  .........................................  1 

Unorganized    .............................................  8 


Records  of 
In  Alaska 


MINING  LEASE.     See  LEASE. 

MINORS  ..................................................  65,  147 

MODELS  ....................................................   415 


INDEX.  701 

MONTANA—  PAGE 

Location  of  Lode  in 73 

Location  of  Placer  in 275 

MONUMENTS  (see  LAND  OFFICE  REGULATIONS) 57,  61,     90 

MORTGAGE,  LIEN  OF 324 

By  Corporation 395 

NATIONAL  FORESTS 419,  523 

Rights  of  Way  in 246 

NATURAL  GAS.     See  OIL  AND  GAS. 

NATURALIZATION   387 

NEGLIGENCE 452 

NET  PROFITS 429 

NEVADA— 

Location  of  Lode  in 75 

Location  of  Placer  in 276 

NEW  MEXICO— 

Location  of  Lode  in 78 

Location  of  Placer  in. . .  . .  276 


NEWSPAPER— 

In  Application  for  Patent 567 

In  Forfeiture , 144 

NITRATE 261 

NORTH  DAKOTA— 

Location  of  Lode  in 78 

Location  of  Placer  in 278 

NOTICE— 

Lode  Location 37,     38 

Placer  Location 2G8 

Renewing  3o 

Changing  Names  on 168 

On  Underground  Discoveries. 49 

Injunction   467,  473 

Of  Forfeiture 145,  146 

To  Ore  Buyer 431 

Of  Assessment 406 

NUISANCE 293,  466 

OIL  AND  GAS 665 

Lease 674,  676 

Are  Minerals 666 


762  INDEX. 

PAGE 

No  Estate  in,  Until  Found 668 

Eight  to  Pump 669 

Exploding  Well 669 

Wasting,  Plugging 670 

Protection 672 

Paying  Quantities 683 

Oil  Sinking  Contracts 684 

On  Public  Domain 686 

OIL  LAND- 
AS  Placer .""". 686 

Annual  Labor  on 142,  689 

Discovery   on 687 

Eeserve  Title  in  U.  S 255 

The  Withdrawal  Acts 261,  422 

OIL  WELLS 436 

Lien  on 326 

OPEN  CUT— 

Discovery  in 23,     47 

OPTION 351 

ORE  BUYERS 430 

ORE  CONTRACTS 427 

ORE  SALTING 433 

ORE  STEALING 433 

OREGON— 

Location  of  Lode  in 79 

Location  of  Placer  in 278 

OVERLAPPING  CLAIMS 155,  176,  182,  185 

Annual  Labor  on .*. 132 

PARTNERSHIP   325,  367 

PATENT 168 

Application  for 540 

Land  Office  Rules 493 

Not  Divest  Easements 244 

Not  Divest  Liens 386 

Lodes  Dipping  Under 304 

In  Examination  of  Title 385 

To  Assignee 596 

Suit  to  Cancel 179,  477 

Its  Common  Law  Grant 212,  217 

Conclusiveness  of 177 


INDEX.  763 

PAY  ORE—  PAGE 

In  Discovery 30 

PEXAL  PROVISIONS 432 

PHILIPPINE  ISLANDS 638 

PHOSPHATE 254,  255,  261,  422,  426 

PIPE   LINES 246,  248 

PLACER   257 

Distinguished  from  Lode 259 

Patented  as  a  Lode  Claim 179 

Appropriation  of  Water 235 

Gulch  Claims 258 

What  Is  Classed  as 259 

Location  Certificate '. 271 

Location  Notice 268 

Size  of 266 

Location  on  Surveyed  Land 269 

Lease  of 362 

Association  to  Locate 265 

Statutes  of  U.  S.  and  Colorado 257 

Statutes  of  Other  States 272-278 

Lodes  Within 280,  584 

Annual  Labor  on 140 

Application  for  Patent 280,  583 

Width  of  Lode  in 286 

Forfeiture  of 141 

What  Patent  Covers 303 

Application  for  Group 591 

Land  Office  Rules 490,  504,  533 

Oil  Claims 686 

PLEADING— 

Abandonment  and  Forfeiture 113,  136,  620 

POSSESSION— 

Without  Record 98 

During  Location  Period 104 

After  Location  Period 104 

Defective  Record  Aided  by 106 

As  Notice 386 

Without  Location 438 

How  Proved 440 

Mining  Is 479 

In  Ejectment 438 


764  INDEX. 

PACK 

POSSESSORY  CLAIM  .......................................  6,       7 

Abandonment  ...........................................  9,  108 

Vested  Estate  and  Freehold  ...............................  8,       9 

POTASH    ................................................  255,  261 

POWER  LINES  ...............................................   246 

POWER  OF  ATTORNEY  ......................................   579 

PROMOTERS  ................................................   409 

PROOF— 

Of  Citizenship  .............................................  564 

Of  Labor  .................................................  137 

Of  Forfeiture  .............................................  145 

Of  No  Known  Lodes  .......................................  584 

PROSPECT— 

Transfer  of  ......  .........................................  336 

Abandonment  of  ...........................................   112 

PROSPECTING  CONTRACT  ...................................  376 


PROSPECTOR- 

..    .         27 

PROSPECTUS  

409 

PROTEST  

....       6OC» 

503 

<>47 

..   630 

PUBLICATION— 

To  Enforce  Forfeiture  .....................................  14G 

In  Patent  Application  .....................................  .  566 

Proof  of  ..................................................  571 

Period  of  .................................................  567 

PUBLIC  DOMAIN— 

Occupation  of  ............................................  ;     'Hfil 

Paramount  Title  in  ........................................        7 

Segregation  of  Claims  ......................  .  ...............    171 

Discovery  Must  Be  on  ...........................  -  ...........     39 

Choice  of  Land  Systems  ....................................   170 

QUARRY- 

AS  Placer  ...................  • 

At  Common  Law 

QUARTZ— 

In  Discovery  ..............................................     31 


INDEX.  765 

PAGE 

QUIT  CLAIM  DEED  ..........................................  333 

RAILROAD  GRANTS  ...............................  .  .........  308 

REAL  ESTATE  ...............................................       9 

Dump  Is  ..................................................   250 

RECEIVER   ..................................................  411 

RECEIVER'S  RECEIPT— 

Cancellation  of  ........................................  181,  573 

Affidavit  of  Lost  ...........................................  575 

RECORD   ....................................................     84 

Necessity  for  ..............................................     85 

Time  of  Record  ...........................................  .'     87 

Of  Location  Notice  as  Certificate  ............................     87 

Definition  of  ..............................................     88 

Description  in  .............................................     90 

Possession  Without  Record  ..................................     98 

Without  Location  Work  ....................................     13 

Statute  Requiring  ...................  .a  ....................     84 

Priority  ..................................................     98 

Of  Placer  Claim  ...................  .  .......................   271 

Double  .Record  on  Same  Ground  .............................   168 

RELATION— 

Doctrine  of  ...................................  129,  164,  172,  190 

Water  Rights  ..............................................   240 

RELOCATION— 

Upon  New  Discovery  Shaft  .................................  32 

Before  Year  Expires  .......................................  149 

By  Party  Not  in  Possession  .................................  689 

Of  Abandoned  Claims  ......................................  149 

Instead  of  Annual  Labor  ...................................  154 

Relocator  No  Trespasser  ....................................  135 

After  Patent  Applied  for  ..................................  155 

Of  Void  Claim  ............................................  621 

Pleading   .........................................  113,  136,  620 

By  the  Owners  ............................................  160 

By  Single  Co-Owner  ........................................  150 

Form  of  Certificate  ........................................  160 

After  Loss  of  Discovery  Shaft  ..............................  162 


REPLEVIN 
RESCISSION 


766  INDEX. 

RESERVATION.    See  SEVERANCE.  PAGE 

In  Town  Site  Patents / 306 

In  Patents  Generally 247,  255,  302,  303,  308 

Indian ". 418 

Military 654 

Of  Minerals  by  Deed 340 

RESERVOIRS   245 

RESUMPTION.    See  ANNUAL  LABOR. 

RIGHT  OF  WAY 243 

To  Cross  Lodes 187 

To  Oil  Pipe  Lines 246 

ROADS 244,  593 

ROCK  IN  PLACE 197,  202 

ROYALTY 359-364,  372 

SALES  AND  OPTIONS 343 

SALINES 261 

SAMPLING  AND  SMELTING  COMPANIES 403,  430 

Notice  to 431 

SCALES,  FALSE ; 432 

SCHOOL  CLAIMS 11 

SCHOOL  LANDS 305 

Location  of  Claim  on . 310 

SCHOOL  OF  MINES 4S4 

SEAL 395 

SEEPAGE— 

Show  of  Mineral  by 200 

SEVERANCE 255,  300,  340,  425 

Of  Surface  and  Coal 658 

SIDE  LINES— 

Departure  of  Vein  from 192,  210,  211 

Relation  of  Apex  to 204 

SIDE  VEINS 190,  191 

End  Lines  Control 207 

Dip  Rights  of 215 

SMELTER  FUMES 292,  466 

SOLDIERS'  CLAIMS...  ,     11 


INDEX.  767 

SOUTH  DAKOTA—  PAGE 

Locatiomof  Lode  in 80 

Location  of  Placer  in 278 

SPECIFIC  GRAVITY,  TABLE 711 

6PECIFIC  PERFORMANCE ; 353 

SPRINGS 233 

SPURS 228 

SQUATTERS,  RIGHTS  OF 182 

STAKES— 

Statute  Requiring 22,  23,  68 

Center  and  Corner  Posts 23,  57 

On  Prior  Claim 51,  96 

Time  to  Set. 52 

On  Cross  Cut  Discoveries 49 

Must  Cover  Apex 54 

Marks  and  Numbers 56 

Extra  Angles 54 

On  Precipitous  Ground 61 

Maintaining   63 

Overlapping   96 

On  Placer 269 

Removal  of 434 

Size  of 60 

Trees,  Stumps  and  Stones 60 

STATE  LANDS— 

Location  of  Claim  on 310 

Lieu  Lands 306 

STATUTES— 

Repealed  Act  of  Congress '. 638 

Text  of  Acts  of  Congress 640 

Timber  Act 663 

Timber  and  Stone  Act 658 

Coal  Lands. 653 

Placer  A.  C 257,  280 

1,500-Foot  Act 15 

Of  Limitations , 47  / 

STOCK.    See  CORPORATIONS. 

Paid  in  Lands 334 

Certificate  of  Paid  Up 401 

Assessment  of 397,  405 

STOCKHOLDERS 393,  394 


768  INDEX. 

STONE—  PAGE 

Building 260,   261,  653,  658 

SUNDAY  67,  607 

SURFACE— 

Acreage  of 279,  577 

Mining  Under  Improvements 301 

Severance 300 

Separate  Ownership  of,  and  Minerals 300 

Eight  to  Tunnel  Under 316 

SUEFACE  SUPPOET 302,  480 

SUEVEY— 

For  Patent 540 

For  Adverse 603 

For  Location , 54 

With  Inspection 473 

On  Examination  of  Title 383 

Presumed  to  Cover  Vein 183 

Overlapping   155,  184 

Land  Office  Eegulations 526 

Apex  Leaving 210 

Irregular 229 

Angles  to  Allow  for  Slope 230 

SUisVEYOE  GENEEAL— 

Oscular  of 535 

Feos  of 515,  538 

Eetxttn  of  Excess  Payments 654 

SUEVETOE'S  LIEN 330 

TABLE  OF  SYMBOLS,  ATOMIC  WEIGHTS,  SPECIFIC 

GEA^V  ITY  AND  FUSING  POINTS 711 

TAILINGS 287 

Abandonment  of j 112 

The  Deb  ris  Cases 292 

TAXES , 321 

TELEGEAPH  AND  TELEPHONE  LINES. 246 

TENANT  FOR  LIFE 256 

TENANTS  IN  COMMON 415 

Forfeiture  Between 142 

Non-Joinder  of 445 

Collusion  with  Third  Parties 65 

Eelocation  by 156 

Eights  of,  in  Patent Io3.  38o 


INDEX.  769 

PAGE 

Lease  by 367 

License  from 376 

Adverse  by 605 

TEXAS 8 

TIDE  LANDS.-. 633,  635 

TIES  (see  LAND  OFFICE  REGULATIONS) 57,     90 

To  Discovery  Shaft 90 

On  Placer 269 

TIMBER 261,  435,  663 

TIMBER  AND  STONE 261,  658 

TIME- 
TO  Perfect  Location 52 

To  Adverse 599 

To  Adverse  in  Alaska 599 

To  Record 84,     87 

Essence  of  Contract 345 

TITLE— 

Abstract  of,  in  Examining  Title 383 

Abstract  of,  in  Land  Office 562,  602 

After  Acquired 384 

Possessory 6,       7 

Patented   168,  174 

After  Entry 169 

Color  of 194 

In  Third  Party 442 

In  Neither  Party 624 

TITLE  BOND 344 

TOWN  SITES 306 

TRAILS    244,  593 

TRAMWAYS 245 

TRESPASS 446 

Rights  Initiated  by 101,  105,  269 

Reloeator,  no  Trespasser 135,  151 

By  Surface  Owner 301 

Not  Larceny 434 

Measure  of  Damages 446 

Adverse  Possession  in 480 

Ore  Mined  Under  Claim  of  Right 432 

Taking  Oil  or  Gas 685 


770  INDEX. 

TRUSTEE—  PAGE 

Patent  to 596 

TUNNEL;  TUNNEL  SITE 311 

Diverse  Ownership  in 126 

Discovery  in  Tunnel 23,  49 

Eecord  of 311 

Location  Certificate 312 

Location  Notice 314 

Claiming  Over  3000  Feet 320 

Colorado  Tunnel  Act 317 

Abandonment  of 318 

Annual  Labor  in 319 

Land  Office  Rules 488 

UNITED  STATES— 

Paramount  Title  in 7 

Decisions  of  U.  S.  Courts 10 

U.  S.  Patent 168 

UTAH— 

Location  of  Lode  in _ 81 

Location  of  Placer  in 276 

VARIANCE— 

Between  Record  and  Stakes 95,  598 

VARIATIONS   61,  62,  229 

VEIN.    See  LODE. 

VENTILATION 436 

VENUE— 

In  Injunction  Case 467 

In  Trespass 451 

VERDICT — 

In  Adverse  Suit 622 

VERIFICATION— 

Of  Location  Certificate 75,     97 

Of  Injunction  Bill 470 

Of  Adverse 603,  604 

VERTICAL  PLANES— 

Right  to  Vein  Within 212,  217 

VIEW — 

By  Court  or  Jury 476 

Working  Under 469 


INDEX.  771 

PAGE 

WALLS 226 

In  Discovery 45 

WARRANTY  DEED ; . .  332 

Conveys  After  Acquired  Title 384 

WASHINGTON— 

Location  of  Lode  in 8.1 

Location  of  Placer  in 277 

WATCHMAN 122 

WATER.    See  APPROPRIATION;  DITCHES;  DRAINAGE;  IRRIGATION. 

WIDTH  OF  LODE  CLAIMS 17-21 

WITHDRAWAL  ACTS 261,  422,  689 

WITNESSES— 

To  Deeds 340 

WORKING  CONTRACTS : 381 

WYOMING— 

Location  of  Lode  in : 82 

Location  of  Placer  in 278 

Position  of  Discovery  Shaft 19 

ZONE— 

Mineral  Bearing 201 


LAW  LIBRARY  ^ 

UNIVERSITY  OF  CALIF.  ItNU 
LOS  ANGELES 


JC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


000744352    6 


